Make no mistake – the Government is cracking down on illegal working in the construction industry. Operation Magnify was launched by the Home Office last October to stop employers in the sector using illegal migrant workers and is now in full swing.
It is vital that employers within the construction industry ensure their right to work processes and procedures are legally compliant. The penalties for not checking employee's right to work documents can be severe:
- Two years' imprisonment or an unlimited fine face any employer who knowingly employs an illegal worker.
- Civil penalties for employing illegal workers can be up to £20,000 per worker.
- Perhaps most importantly for employers with a Tier 2 sponsorship licence, there is a serious risk of losing your licence or having it downgraded which will mean it is very difficult to continue employing any non EEA overseas workers lawfully.
A new Immigration Bill is currently before Parliament which will increase the criminal penalties which employers can be exposed to and further "outsource" more responsibility to employers in respect of the prevention of illegal working.
So what should employers be doing?
Right to Work Checks
Before any new employee starts their employment, employers must undertake a right to work check to ensure that individual can legally work in the UK. This involves requesting from the prospective employee the original document which proves their right to work in the UK from either List A or List B of the "Employer's Guide to Right to Work Checks" guidance note found on the www.gov.uk website.
The document provided should be copied, date stamped, signed by the manager who undertook the check and then placed on each employee's personnel file. We recommend that employers conduct regular audits or spot checks of its employee files and eligibility to work processes to address and rectify any issues before the Immigration Enforcement Officers arrives at their doorsteps.
Is there anything else that large employers should be aware of?
Modern Slavery Act
The Modern Slavery Act, which came into effect in October 2015, is aimed at tackling the global problem of slavery and human trafficking. It requires commercial organisations with a global turnover of more than £36m to prepare and publish a 'slavery and human trafficking' statement ("SHT Statement") each financial year. The complex nature of construction industry supply chains, which can involve a number of contractors, consultants and large teams of workers in the UK and abroad, mean incidents of modern slavery and illegal working may be taking place unwittingly.
In 2013, 53 workers in the construction industry were identified as possible victims of modern slavery, a number of which were migrants.
A failure to publish the required SHT Statement could result in court action. Furthermore, a failure to publish an SHT Statement or publishing a SHT statement indicating that no action has been taken to minimise the incidence of modern slavery in its business could have other negative impacts which include:
- Adverse publicity;
- Possible suspension/cessation of works;
- Significant fines.
In preparation for complying with the requirements of the Act, organisations should consider:
- Conducting an internal audit to establish what steps they currently take to identify whether slavery and human trafficking is taking place in their own busines;
- Identifying members of their supply chain and obtain information from those suppliers regarding the steps they take to ensure slavery and human trafficking is not taking place and if deficient consider what steps need to be taken;
- Whether existing policies and practices on procurement, equality and diversity, whistleblowing and recruitment among others, require updating.
Employment Law Developments to look out for in 2016
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