The directors of restaurants in Antrim, Glasgow, Bognor Regis and Newport, South Wales are amongst the latest company directors to receive lengthy bans for employing illegal workers.
A press release from the Insolvency Service reveals that, in all, 20 directors in 16 separate businesses across the UK have been disqualified, all of whom were already fined for employing illegal workers. Eighteen people have been banned from being company directors or being involved in the management of companies for six years each, whilst two have been disqualified for 7 years.
Between them, they employed 41 illegal workers and were fined a total of £505,000 by the Home Office, none of which was paid. Two of the companies have now entered into liquidation, with a further two having been dissolved.
The matters leading to all of the disqualifications are that the directors failed to ensure that the companies complied with statutory obligations under The Immigration, Asylum and Nationality Act 2006 and Immigration Act 2016 to ensure that relevant immigration checks were completed and copy documents retained, resulting in the employment of illegal workers.
Following visits from Home Office Immigration, during which the breaches were discovered, the companies were issued with penalty notices ranging from £10,000 to £15,000 per worker. All of the penalty notices remain unpaid.
This is a timely reminder for all companies (and their directors and HR officers) of their obligations:
An immigration officer visiting your businesses may request documents evidencing each employee’s right to undertake the work for which they are employed.
If the immigration officer believes that an employee has been working without the appropriate permission, they may issue a Referral Notice. This may, amongst other things, lead to a Civil Penalty Notice, including a fine. The starting point for the calculation of the civil penalty is £15,000 per illegal worker employed.
An employer may object to the Civil Penalty Notice if it has established a statutory excuse. This includes if you have correctly carried out the prescribed right to work checks using acceptable documents before employment commences. Where an employee has a time-limited right to work, and you have therefore established a time-limited statutory excuse, you are required to conduct repeat document checks to retain the excuse. You must keep on file a copy of the documents checked (subject to your data protection policy and data protection law).
Directors and HR officers should take careful note that you will not have a statutory excuse if:
- you cannot provide evidence of having conducted the prescribed document checks before the employment commenced;
- you have accepted a document which clearly does not belong to the holder (it is reasonably apparent that the person presenting the document is an imposter);
- you have conducted a check and it is reasonably apparent that the document is false (the falsity would be considered to be ‘reasonably apparent’ if an individual who is untrained in the identification of false documents, examining it carefully, but briefly and without the use of technological aids, could reasonably be expected to realise that the document in question is not genuine);
- you have accepted a document which clearly shows that the person does not have permission to work in the UK and/or to carry out the type of work you are offering (you have employed a person with either no right to work or a person in breach of their work restrictions);
- the endorsement demonstrating your employee’s work entitlement or Biometric Residence Permit has expired;
- you know you are employing a person who is not allowed to undertake the work regardless of whether you have carried out any document checks; or
- your statutory excuse has expired.