The recent resignation of Mark Harper, the Immigration minister, serves as a wake-up call to the importance of carrying out the appropriate checks on a migrant worker’s “right to work” documents.
Mr Harper resigned from his Government post after discovering that the cleaner he employed at his London flat did not have permission to work in the UK. He explained that he had made checks when he first employed the cleaner in April 2007, taking a copy of her passport and a Home Office letter which stated she had the right to work in the UK. However, last month, after being unable to find the documents, he requested further copies but when his private office checked the cleaner’s details with immigration officials to confirm all was in order, the issue with the cleaner’s permission to work was revealed.
Although Mr Harper appears to have complied with the law at all times, businesses in the hospitality industry (which rely on migrant workers perhaps more than any other sector) can learn some valuable lessons from this unfortunate tale.
Know the law
Where a business is found to be employing a worker illegally they may face a civil penalty of up to £10,000 (potentially increasing to £15,000 per worker from April 2014). Criminal sanctions (including a jail sentence) may apply in circumstances where the employer knows that it is employing an individual without the necessary permission but carries on regardless. Other repercussions from being found to be employment any individual illegally could range from adverse media publicity to the business potentially losing its sponsor licence, an action which could be damaging to any employer.
Crucially, a business may at least avoid having to pay the civil penalty if it can demonstrate that it carried out checks on the employee’s documents before they engaged in any work.
This underlines the importance of having a strict policy of carrying out pre-employment checks. Our advice is that, before you offer work to any potential recruit, you satisfy yourself that they have all necessary immigration permissions to perform the specific job role. To avoid accusations of discrimination, this policy should be enforced across the board, from the appointment of a hotel chain’s CEO down to staff engaged to work in the kitchens.
Most of the workers you are likely to recruit will have a passport issued by the UK or one of the other countries in the European Economic Area which will typically be conclusive evidence of an individual’s right to work here. Photocopies of such a document should be taken and retained on a personnel file as a record of having completed a check. However, if you are presented with a form of document that only grants temporary permission to be in the UK (for instance a visa that last three years), you will need to repeat your checks at least once a year to ensure that the correct permission to work remains valid and in place.
Whilst the Home Office do not expect employers to be experts in identifying fraudulent documents, it is important that you take reasonable steps to satisfy yourself of the authenticity of the paperwork provided to you. This will include taking steps such as comparing the photo on the document to the potential new recruit’s actual appearance and ensuring official watermarks are present. Where there are any doubts, the Home Office encourages employers to contact the UK Visa and Immigration’s document checking service for definitive assistance.
Staff involved in recruitment should be provided with all the skills and equipment needed to ensure that your business remains compliant. As a bear minimum, we would advise that they are supplied with a step-by-step checklist setting out how to perform the checks alongside a system on which they can make (and store) copies of the correct documents. Your staff handbook should include policies and procedures to ensure everyone in your organisation knows their obligations in respect of right to work checks.
A measure we would also suggest taking is to ensure that all offers of employment are made subject to the provision of satisfactory evidence of UK permission to work and that any contract of employment can be terminated by you immediately (without need for notice or payment in lieu of notice) in circumstances where the necessary right to work ceases. Taking such action will give you a helpful “get out” if the potential recruit fails to present adequate right to work documents or has a visa withdrawn.
The worst thing that an employer can do is bury its head in the sand when it comes to dealing with right to work checks. If you have any concerns, we would recommend carrying out an audit on your personnel files and taking immediate action to remedy any issues; if the Home Office discover illegal workers in your business before you do, then it’s too late.