overseas workers - compliance and penalties
The UK Government has, for the last few years, looked to tighten
restrictions on overseas workers taking up employment in the UK. As
there has been recent criticism that the Home Office has failed to
act in cases where approved employment has ended or there is other
default, we can expect measures and resources to be directed in
this area.
The purpose of this newsletter is to outline the steps nursery
operators need to take to ensure that they comply with their
obligations.
who is affected?
Employers are under an obligation to check that each employee
has the ability to work in the UK. Depending on when the employment
started, the employer has ongoing obligations. For employees who
started after 29 February 2008, the checks may need to be made at
least annually.
what documents do employers need to check?
Since the 1996 Asylum and Immigration Act, the Government has
set out combinations of documents that provide employers with a
statutory defence. Employers are not required to be forensic
scientists, merely to have a genuine belief that the document
presented is original and it relates to the employee in question –
ie date of birth, sex etc. corresponds. Provided you see the
original documents, take copies and retain them on the employee's
file, you are then protected if that document turns out later to be
a forgery – provided you have a reasonable belief as to the genuine
nature of the document and do not have knowledge to doubt the
ability to work.
The primary document to check is the original passport. The
Government require a copy of the cover (the page with the relevant
country emblem) the biometric page and the actual visa. It is also
good practice to take copies of any additional supporting
documentation as the visa will not always confirm the extent of any
working permission. Students in particular have conditions which
are not recorded on the actual visa. In order to avoid
discrimination, you must check the ability to work of all
employees.
penalties
If the Home Office suspect an offence, they will issue a penalty
– typically £10,000. The nursery operator can then have the penalty
dismissed by providing the documents to invoke the statutory
defence, or may be able to limit liability when it can be shown to
be one-off error. There are also criminal charges where any
employer is shown knowingly to employ staff illegally. This does
not only relate to professional criminal gangs but can also include
employers who have completed the requisite checks on commencement
of employment but have subsequently been advised that permission
has lapsed. Inaction can be catastrophic for both employer and
employee.
As the Government has taken significant steps to reduce the
ability of non EEA nationals to commence work, their next target is
likely to focus on employers who are not complying with their
obligations.
action points
- Check your obligations in relation to each employee, depending
on their start date.
- Check you have all relevant documentation.
- If you don't, take steps to obtain it.
- Keep the evidence up to date.
For more information, contact Mary Chant,
partner and head of Blake Lapthorn solicitors' Health and Care group in
Southampton on
mary.chant@bllaw.co.uk or call 023 8085
7043.
