Briefing

A private client employer's duty to prevent illegal working

Posted by: Serena Nicholls | Date posted : 21/04/2016

This article was first published by eprivateclient, reproduced here with kind permission of the editor.

Private client employers often employ staff from overseas butmany are unaware of their duty to check that those they employhave the right to work in the UK.

If an employer does not carry out certain checks, they may have to pay a civil penalty of up to £20,000 for each illegal worker. If an employer knowingly employs an illegal worker, this will be a criminal offence and they may receive an unlimited fine and/or face a custodial sentence.

Legal penalties aside, an employer may also suffer serious reputational damage if they are found to be employing illegal workers. High profile individuals, in particular, who employ illegal workers garner much attention in the press.

Further, following the introduction of The Modern Slavery Act 2015 in March last year, aimed at addressing the issue of slavery and trafficking in the 21st century, it seems the Home Office is considering a system of spot checks on individuals employing household staff.

It is not yet clear how this system would be effected, however a consequence of any spot checks is that employers employing illegal workers are more likely to be uncovered.

Finally, the government has proposed a number of changes to the current immigration regime, which are aimed at bolstering the current rules. These include extending the current criminal offence of knowingly employing an illegal migrant to apply to employers who have reasonable cause to believe that a person is an illegal worker; and increasing conviction on indictment from two to five years.

The problem of illegal working is seeing increasing attention,both from the government and the press; therefore employers would be well advised to take steps to ensure compliance.

Checking eligibility to work in the UK

An employer should check that anyone they employ has the right to work in the UK. If they correctly carry out document checks for all recruits before they start work, they should have a legal excuse against payment of a civil penalty if they are found employing an illegal worker.

To make sure they have an excuse there are four key things an employer must remember:

  • They must carry out checks on acceptable documents before aperson starts working for them (conducting the checks on the day they start work will not comply).
  • If a person has a time limit on their right to work, the employer must carry out repeat document checks when the permission expires.
  • If a person has a restriction on the type of work they can doand/or the amount of hours they can work, the employer should make sure they do not employ them in breach of those work conditions- However, the employer will not have any legal excuse if they knowingly employ an illegal worker, regardless of any document checks they carry out.
  • The Home Office website includes a helpful checklist that can be used when checking an individual's right to work. In broad terms,an employer should follow Steps 1 to 3 below for every person they are looking to employ and every existing employee who hasa time limit on their right to work. So as to avoid a claim of discrimination, an employer should carry out checks on all prospective employees, not only those of non-British descent.

Step 1

An employer must ask to see a document or combination of documents evidencing the person's right to work in the UK. They must see the originals of those documents. The Home Office Checklist details the documents that will be acceptable and for how long the check is valid.

Step 2

An employer must take all reasonable steps to check that the document is genuine and be satisfied that the holder is the person named in the document. They should also check that the document allows the person to do the work in question.The Home Office Checklist sets out the sort of things an employer should look out for. An employer would be well advised to complete the checklist, to provide evidence they have carried out these checks.

Step 3

An employer must take and keep a copy of the document, in a format which cannot later be altered.

We recommend that an employer signs the copy and writes on itthe date on which they took the copy; and keeps it on file for theduration of the person’s employment and for a further two yearsafter they stop working for them.

If you require further information on anything covered in this briefing please contact Serena Nicholls (serena.nicholls@farrer.co.uk;+44(0)20 375 7463) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Private Wealth page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP,  April 2016