Employers and recruitment agencies

* Are you an employer or responsible for recruitment within your organisation or for other companies? Are you concerned about the law that requires you to ensure that you do not employ someone who does not have the right to work in the UK, referred to in the Home Office Code of Practice on Preventing Illegal Working as ‘illegal workers’?

* Do you know how to balance the law about illegal workers with the legal requirement not to discriminate against someone who is seeking employment because of their race and act in accordance with other laws to protect employees? A discrimination claim could follow if you only apply the requirement to provide proof of immigration status to people you assume are ‘migrants’ or dismiss someone from employment when you wrongly think that their permission to work has expired.

* If you break any of these laws, you can either be liable to a fine payable to the UK Border Force for employing people illegally or face a claim in the Employment Tribunal for racial discrimination or unlawful dismissal.

* Legal advice could help you:

– reduce or avoid the penalties that arise from failing to comply with the law, especially when the UK Border Force can imply that failure to co-operate with them or delay in paying the fines can increase the costs and have serious implications for your business;

– amend/prevent adopting practices that are discriminatory or illegal.

* Good employers also do not want to miss out on employing the best people for the jobs available. Advice about establishing the right systems for selecting people for employment and keeping them can therefore mean that you not only get the best people in place but also avoid the risk of a penalty or claim for discrimination or unlawful dismissal.

* In any of these situations, Fountain solicitors can help you. For non-urgent matters, please complete the enquiry form or email Sue Conlan on sconlan@fountainsolicitors.com Free consultations up to 30 minutes are available. If the case is urgent, please call Sue on 07791 991756.

Illegal Working, Civil Penalties and Criminal Liability

The Civil Penalty System was introduced for employers in February 2008. In 2014 the Civil Penalty Scheme was amended to increase the level of fees and make other

administrative changes imposing new requirements on employers. Under this system, employers can be issued with a Notification of Liability of a Civil Penalty starting at £15,000 for each person found to be working illegally and up to a maximum of £20,000 per person.

In July 2016, the law was changed again and the criminal offence of employing an illegal worker came into force. This applies to employers when it is alleged that there is ‘reasonable cause to believe’ that they are employing illegal workers. The new powers give immigration officers the right to enter premises and close a business down for 48 hours.

Employers will have a ‘statutory excuse’ against issue of a civil penalty by demonstrating that they have checked and copied specific documents before the employment began.

We recognise that full checks are not always undertaken and the statutory defence may not always be available. In addition, employers are not trained in all the variations of immigration status and therefore may wrongly assume that a person does not have the right to work and illegally refuse employment, suspend or dismiss someone who is in fact legally entitled to work.

If you are issued with a notice of potential liability and a Civil Penalty Notice it is important that you act quickly. Employers must either pay the civil penalty in full or ask the Civil Penalty Compliance Team for permission to pay the civil penalty in monthly instalments within 28 days. Alternatively, an objection can be submitted to the Civil Penalty Compliance Team against the civil penalty and an appeal can be made to the County Court.

The size of the civil penalty will depend on the type of the eligibility checks that the employer has made and will also take into account whether the Home Office has issued a warning or previously imposed a civil penalty. The extent that the employer has co-operated will also be taken into account but you have to balance this against the rights of your employees.

Your business’s details may also be published by Immigration Enforcement as a warning to others.

We at Fountain Solicitors have been successful in appealing civil penalties and have even been able to secure costs against the Home Office for wrongly issuing civil penalties and fining employers.

In addition, if you believe that you may have been refused an offer of employment or suspended or dismissed in error by an employer because of assumptions or mistakes about your legal right to work, we will be able to advise about your rights and the action that you may be able to take. Our experienced immigration team can also advise and assist with actions taken by the UK Border Force to seize money that has been taken from people whom it is alleged were working illegally.