Byron’s handling of illegal workers has sparked a backlash from some members of the public for seemingly complying with its legal obligations. Legal expert Caroline Glacken analyses the case and explains what an operator's duty is in such situations.

The problem

On 4 July 2016, 35 Byron Hamburgers employees were arrested and held for immigration offences. The arrests occurred on Byron premises with employees saying that they had been called in for an unrelated meeting when officers arrived to make arrests. 

This has sparked an incredible backlash from some members of the public because Byron co-operated with the Home Office. A vocal minority has called for boycotts of the chain, protests have been held outside its branches and insects have been released in restaurants, forcing the closure of some branches. 


The law

In order to work in the UK, immigration law requires that a migrant must have a valid immigration status and, secondly, that status must allow them to undertake the employment in question. 

There is a legal obligation on the employer to prevent illegal working by undertaking right to work checks prior to employment. This involves a review of the employee’s documentation (such as their passport, visa or biometric residence card) to ensure that they have the right to do the work. 


Expert advice

Byron has released a statement, which outlines that: 

  1. It carries out rigorous right to work checks
  2. The Home Office notified Byron that a number of its workers had used sophisticated counterfeit documentation
  3. It co-operated fully and acted on the Home Office’s requests and processes 

On the face of this statement, Byron has actually done exactly what it was supposed to do. The 35 individuals who have been held will not have had permission to work and may not have had permission to be in the UK. They would have knowingly used false documentation to dupe Byron and would have known the consequences of getting caught. 

Byron did not ‘entrap’ the workers in calling them into a meeting – which has been one criticism made of its co-operation. The workers were already in illegal employment. Byron was required to co-operate with the Home Office operation once it had been made aware that the workers had used false documents. 

The Home Office raid was terrible timing for Byron, following as it did in the wake of the vote to leave the EU and the unknown consequences this has for the three million or so EU citizens who currently live in the UK. The issue of immigration may be dividing public opinion but Byron acted as it is required to do by law. 

Employers should not be intimidated for having sought to comply with their legal obligations. Any employer with concerns about illegal working and conducting right to work checks should seek legal advice at the earliest opportunity. 


Checklist

If an employer finds itself in the same situation as Byron but can demonstrate that it has taken all the following steps, then it may also be able to avoid penalties:

  1. Report suspected illegal workers
  2. Actively co-operate with the Home Office 
  3. Have effective document checking procedures in place


Beware

If an employer does not conduct right to work checks and is found to be employing workers illegally, the maximum penalty is a fine of up to £20,000 per worker and/or criminal sanctions for directors.

From 12 July 2016, a worker may now also be prosecuted for a criminal offence of illegal working and could also face a fine or custodial sentence, and have their earnings confiscated as the proceeds of crime.

This article was first published in The Caterer on 8 July 2016.