Employing illegal workers will prove costly

Standfirst: Employers should be aware of new system of civil penalties for employing illegal workers which comes into force on 29 February, warns Matthew Smith, Employment Partner at Thames Valley and South Wales solicitors Morgan Cole.

It has been described by the Home Office as ìpart of the biggest immigration shake up for 40 years.î

In the coming weeks, we can expect to see massive publicity about the prevention of illegal working as the government launches its campaign publicising the details of how the new rules will operate.

It is particularly important that employers are aware of the rules because during the last few years the UK has seen a significant influx of overseas workers into our food processing and manufacturing sectors.

Essentially, it is the employer who has responsibility for ensuring that anyone they employ has the legal right to work in the UK. Therefore employers must familiarise themselves with the new rules coming into force next month. Otherwise, the consequences could prove costly.

As the Immigration Minister Liam Byrne says, ìIllegal working attracts illegal migrants and undercuts British wages. The message is clear for employers: we will not tolerate illegal workingî.

It is important not to be complacent and to think that your own stringent recruitment procedures would not allow such a situation to arise in your organisation. But what about people you take on through third parties such as contractors?

Thatís what happened with the Metropolitan Police when it discovered that some individuals it had employed through a contractor were in fact suspected illegal workers.

Under the new rules, employers who negligently hire illegal workers could face a maximum fine of 10,000 for each illegal worker found at a business unless they can establish a ìstatutory excuseî against payment of a penalty.

If employers are found to have knowingly hired illegal workers, that is a criminal offence punishable with an unlimited fine and/or up to two years in prison.

Guidance for employers on the prevention of illegal working has just been issued by the Border and Immigration Agency (BIA) as well as a Code of Practice which provides details of how the level of a fine will be determined.

There will be a sliding scale with minimum and maximum penalties but the actual amount will be decided by the BIA on a case-by-case basis.

The amount of the penalty will depend on a number of factors: the nature of the document checks conducted by the employer, the number of offences committed by the employer in the past three years and the extent of the employerís co-operation with the BIA.

If an employer reports his suspicion to the BIA about an employeeís entitlement to work in the UK, the amount of the penalty might be reduced.

The Code also contains a series of useful flowcharts which set out how the level of the penalty may be increased or reduced as well as some practical case studies. For more information on how to comply with the legislation, take a look at www.bia.homeoffice.gov.uk/employingmigrants or contact one of the employment team at Morgan Cole.

Finally, it is important to remember that the BIA carry out regular enforcement operations against illegal working.

There were 5,200 such operations in 2006, resulting in the removal of more than 22,000 people from the UK, and we have seen a number of restaurants around Wales targeted in recent months.

The new rules have enormous consequences for employers who breach them ñ so everyone should be prepared.


* Matthew Smith is a partner in the Morgan Cole (www.morgan-cole.com) Employment, Pensions and Benefits team which has five partners and fourteen solicitors.