All employers have a legal obligation not to employ illegal workers. Getting this wrong can lead to criminal and civil penalties of imprisonment and fines of up to £20,000 for each illegal worker engaged. You also run the risk of being “named and shamed” on the UK Visas and Immigration (UKVI) website. This is likely to become even more of an issue with a new PM and Brexit.
However, employers may face unfair dismissal and/or race or nationality discrimination claims if they breach employment law in an attempt to comply with their right to work obligations, which may be even more costly.
This article gives you some tips to avoid breaching either regime in common scenarios you might face.
Can I prevent applications from workers who do not have the right to work in the UK? When should I screen applicants in respect of their RTW during the recruitment process?
• Preventing someone from submitting an application for employment if they do not have the right to work in the UK at the date of application could be direct race discrimination.
• Screen applicants (in relation to RTW) as late as possible in the process, so that the early stages of recruitment relate solely to merit and not to race or nationality.
• Do not make assumptions about a person’s right to work in the UK based simply on their background, appearance or accent. Apply RTW checks to all workers.
• You may ask applicants to provide RTW document(s) at any stage before they start work, but be consistent - screen all applicants at that same stage, so that you are not treating applicants of other races/nationalities less favourably.
• Do not treat job applicants less favourably if they produce acceptable documents showing a time-limited right to work in the UK.
• NB. Once you have carried out checks and established that an individual is not permitted to work in the UK, you can refuse to employ that person.
My new recruit has started working for me, but they have not produced the correct RTW documents. How long should I give them to produce these?
• Immigration legislation states that you must not employ an illegal worker. The longer it takes the employee to produce RTW documents, the more risk that you are employing an illegal worker.
• Suspending an employee while confirming immigration status may be reasonable from an employment law perspective, but it would not satisfy the Home Office.
• Avoid this risk by checking original RTW documents before employment commences, so that there is time to investigate/resolve any issues before the employee might become an illegal worker.
• Be consistent to avoid race discrimination. For example, if a white British employee fails to bring in RTW documents but you allow them to remain at work and give them several opportunities to bring in their paperwork, but you suspend a non-British employee who fails to bring in paperwork, this would be race discrimination.
I believe that one of my employees (who has worked for me for 2+ years) is no longer allowed to work in the UK. Should I dismiss him immediately?
The Home Office view is that you should dismiss in these circumstances, but what about the risk of unfair dismissal?
To fairly dismiss an employee (with 2+ years’ service), you need 3 elements:
1. a potentially fair reason for dismissal;
2. which is reasonable in the circumstances; and
3. a fair procedure.
One of the potentially fair reasons in employment law is that continuing to employ an employee will involve you or the employee breaking the law (often known as a “statutory restriction” dismissal).
Where it is clear that an employee does not have the right to work in the UK, you can rely on this reason to fairly dismiss. However, RTW checks and immigration are rarely clear.
To rely on the “statutory restriction” reason, it must be the case that continuing to employ the employee would actually contravene a statutory restriction. If you believe that is the case, but that belief turns out to be wrong, the dismissal could be unfair.
Following a recent Employment Appeal Tribunal case, all is not lost. Provided that you genuinely believe that continuing to employ an employee would contravene a statutory restriction (after a reasonable investigation), you may be able to rely on another of the potentially fair reasons for dismissal, namely "some other substantial reason"- a bit of a catch all category. To rely on this, you should take the following steps:
• Ask the employee to provide proof of their right to work in the UK (and keep asking!).
• Seek confirmation from the Home Office regarding the employee’s right to work in the UK.
• Suggest that the employee make a data subject access request to the Home Office seeking confirmation of their status.
• Warn the employee that a failure to provide evidence of immigration status could result in their dismissal.
You do, however, need to balance the unfair dismissal risk against the risk that you may be employing an illegal worker, so seek immigration and employment law advice if you are unsure.
What does this mean for you or your business?
As mentioned above, the potential consequences of getting this wrong are serious.
Breaches of immigration law can lead to:
• civil and criminal penalties, including imprisonment and fines of up to £20,000 per illegal worker;
• being named and shamed by UKVI; and
• jeopardising a sponsorship licence which your business may hold.
Breaching employment law can lead to:
• unfair dismissal claims by employees with 2 years’ + service;
• costly discrimination complaints from job applicants and employees (no matter how long the length of service);
• the Equality and Human Rights Commission taking regulatory action against you if you publish a discriminatory advertisement or instruct or induce another person to discriminate; and
• being disqualified from entering into public procurement contracts if you are found to have committed an act of unlawful race discrimination.
What do you need to be doing now?
Ensure that you understand your RTW and employment law obligations to avoid running the above risks, and seek specialist immigration and employment law advice if you do not.
Familiarise yourself with the Home Office code of practice “Avoiding unlawful discrimination while preventing illegal working”, as it contains very helpful and practical guidance in this area. An Employment Tribunal can take into account failure to observe the Code in deciding whether there has been discrimination.
Remember that under the Equality Act 2010 you will be liable if your employees commit discrimination in the course of their employment, whether or not you knew or approved the acts of discrimination, unless you can prove that you took all reasonable steps to prevent such discrimination. To benefit from this defence, provide training to your employees on how to apply RTW checks in accordance with the Home Office code of practice.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.