In November 2012, Tesco was fined £115,000 for employing foreign students who did not have appropriate immigration permission at its warehouse in Croydon, South London. In addition to the fine, it is understood that 20 students were removed from the UK by the UK Border Agency (UKBA) for breaching the terms of their student visas.

Students who require a visa to study in the UK are entitled to work for up to 20 hours per week during term-time and full time outside of term-time. It appears that Tesco failed to ensure that all of its student employees were employed in accordance with these requirements.

Tesco is a high profile but not isolated case. A number of employers in the food sector, both in agriculture and production, have been subject to fines in recent years. The reasons for this are likely to range from mistakenly employing individuals without the appropriate immigration permission due to failing to conduct appropriate document checks, through to knowingly employing illegal workers on low rates of pay with the purpose of keeping costs down and achieving a competitive advantage.

The consequences for employers who employ workers without the appropriate immigration permission can be significant.

An employer who negligently employs someone without the right to undertake the work for which they are employed can face a civil penalty fine of up to £10,000 per employee.

An employer who knowingly employs an individual who does not have the appropriate immigration permission, will be committing a criminal offence and will have potential exposure to imprisonment of up to two years and an unlimited fine.

It is therefore vital that employers understand the pre-employment checks that should be undertaken. Such checks will help verify whether an individual is entitled to perform a role, and go to establishing a statutory excuse to a civil penalty. Full details of the checks that should be carried out are set out on the UKBA website. In summary, an employer should:

  • Request to see original documents evidencing the right to work in the UK (eg, a passport or biometric immigration document) 
  • Take copies of relevant pages of the original documents 
  • Check biometric resident permits for individuals who are subject to immigration control (these checks should be repeated every 12 months)
  • Check the documents are genuine, including names, photos and dates of birth 
  • Retain copies for the duration of employment and two years thereafter

If an employer inherits employees as a result of a transfer under TUPE, it must carry out original document checks within 28 days of the date of the transfer. Failure to do so will mean that the employer will not be able to establish a statutory excuse to a civil penalty.

In addition to the potential civil and criminal penalties, failure to conduct appropriate checks and retain relevant paperwork may impact on the ability of an employer to recruit migrants in future. The UKBA may, for example, suspend or remove an employer’s sponsorship licence. Tesco avoided such sanctions by co-operating in full during the course of the UKBA investigation and by implementing additional measures to prevent such an incident happening again. The UKBA may not, however, always exercise its discretion in such a favourable manner towards the employer.