The laws on illegal workers are set to get tougher, so make sure your procedures are watertight now
Employment law creates big headaches for the construction industry. The rules rarely seem to make common sense. It is all too easy to fall foul of the regulations. And the large number of foreign workers in the industry makes recruiting labour even more of a legal minefield.
It is estimated that up to 500,000 people are working in the UK illegally – and controlling the situation is high on the government’s agenda. Under the Asylum and Immigration Act, if an employee is found to be working illegally, an employer can be prosecuted and found guilty of a criminal offence. It can also be fined up to £5000 per illegally employed person.
To tighten up the position, an asylum and immigration bill is currently going through parliament. If it becomes law, individuals who “knowingly” employ an illegal worker could face prison for up to two years. The fine has been reduced from £5000 to £2000 but it is thought to be more likely to be enforced. Under the bill, bailiffs would get the power to seize goods from the home or business premises of anyone refusing to pay the fine. Also, employers would be required to conduct regular checks to ensure that their foreign national workers still have the right to work in the UK.
The legislation is likely to cause problems for smaller companies that do not have proper procedures in place (or do not know about the requirements) for checking documents. Also, those companies whose workforce predominantly consists of casual workers with a high turnover of employees must reconsider their procedures if they are to avoid workers slipping through the net.
As the law stands, an employer needs only to check and keep a record of certain documents before taking on an employee. The proposed bill does not state whether there will be any changes to the documentary proof required from potential employees, as this is to be covered in a separate instrument nearer the time. For the moment, employers should continue to ask for the documentation and carry out the necessary checks as required.
A typical document that is considered valid evidence is a passport showing that the holder is a British citizen or has a right to reside in the United Kingdom or that he or she is a national of certain European countries. Also, a resident’s permit issued by the UK to a national from certain European countries will satisfy the rules. Otherwise, the person needs to have a passport or other travel document endorsed to show that the passport holder can stay indefinitely in the UK.
If the individual does not have one of these documents, it would also be good enough if he or she had a passport or other travel document that made it clear that the person could stay in the UK and were capable of doing the work. Also, some asylum seekers may be given an Application Registration Card, which states that they are permitted to take employment in the UK.
If none of these documents are available, employers can rely on certain “secondary documents”. However, two secondary documents are needed. These include birth certificates, National Insurance cards, a letter from the Home Office stating that the person can stay indefinitely in the UK or a work permit. The DTI website (www.dti.gov.uk) gives the full list of documents that employers are allowed to rely on.
It is vitally important that employers insist on receiving this documentation from all prospective employees even if they seem to be obviously British. To do otherwise could open the door to a claim for race discrimination, which could mean an unlimited fine.
Employers that do not heed warnings and fail to check the documentation of their employees could find themselves out of pocket or in the slammer. It is essential that employers not only carry out the necessary checks but are able to prove that they have done so by taking a copy of and securely storing relevant documents.
Be warned. The law is only going to get tougher on employers that fail to comply and in the current political climate we can expect to see many more employers prosecuted for breaching the rules.
Make sure you’re not one of them.
Paul Brampton and Paul Callaghan are specialists in construction law and employment law at Taylor Wessing. They can be contacted on email@example.com or firstname.lastname@example.org