As reported in the autumn 2013 edition of let’s talk shop, the retail sector can attract employees who are working in the country illegally. Angela Brumpton takes a look at recent Government changes to employers’ duties to make sure they are not employing illegal workers.

The rules

The law changed on 16 May 2014, bringing in new measures to simplify checks on the immigration status of potential employees by:

  • reducing the number of acceptable documents that an employer has to check;
  • limiting the frequency of follow-up document checks for most employees; and
  • doubling the grace period for right to work checks for employees acquired as a result of a Transfer of Undertakings (Protection of Employment) from 28 to 60 days.

Preventing illegal working

The Government’s focus on tackling illegal working is based on the potential it has to damage the UK economy with consequent adverse effects on employment.

Under section 15 of the Immigration, Asylum and Nationality Act 2006, an employer may be liable for a civil penalty if they employ someone who does not have the right to undertake the work in question. Employers have a duty to prevent illegal working in the UK by carrying out prescribed document checks on people before employing them to ensure they are lawfully allowed to work. The combination of documents required is listed in published guidance.

Penalties

Under the new law, the maximum penalty for employers who break the law has doubled. Repeat offenders who continue to hire illegal workers now face fines of up to £20,000 per employee. In addition, an employer who knowingly employs an illegal worker may face up to two years’ imprisonment and/or an unlimited fine.

How can retailers protect themselves?

General tips...

  • Document checks must be carried out on all potential employees before employment, in the presence of the document holder.
  • Carry out a follow up document check on people who have a time limited right to work in the UK.
  • Make and retain a copy of the documents for the duration of the employment and for two years after the employment ends.
  • Record the date on which the document checks are carried out.

For students...

  • If the potential employee is a student with a limited right to work in the UK, the employer should ask the student to provide evidence of their academic term and vacation dates covering the duration of their studies in the UK for which they will be employed.

Positive Verification Notice (PVN)

  • In some circumstances, it is necessary to obtain specific confirmation from the Home Office that a person has permission to undertake the work in question, in the form of a PVN. This should be obtained when an applicant seeks to rely on the following:
    • A certificate of application (which indicates that work is permitted and must be less than six months old).
    • An application registration card stating that the holder is permitted to undertake the work in question.

You should also contact the Home Office if you are reasonably satisfied that you have not been provided with any acceptable documents because the person in question has an outstanding application or has an appeal pending against a Home Office decision and therefore cannot provide evidence of their right to work.

Good practice

While the new measures aim to simplify the responsibilities of employers when it comes to checking an employee’s right to work, the consequence of failing to comply with those obligations is now more severe. It is therefore essential that, as an employer, retailers provide the necessary training and comply with the requirements to avoid penalties.