HM Insights

Employers, illegal workers and the right to work in the UK – a stark warning on compliance

A recent court case has once again highlighted why employers should be aware of obligations under the Immigration, Asylum and Nationality Act 2006. This act imposes the obligation on employers to undertake compliance checks to ensure that their employees have the right to work in the UK.

Illegal Worker Employment Law Scotland Lawyer Immigrant Employee Check Civil Penalty

What are employers obliged to do?

Detailed guidance on how to carry out the checks is provided by the Home Office. However, in short, it requires examination of original documents, review of validity and retaining a copy of the documents with a date they were checked.

For example, examining, reviewing and copying a passport showing the potential employee is a British citizen should usually be sufficient to comply with the duty (providing all is in order with the document).

If an employer has shown that they have carried out checks, then it can establish a statutory excuse to the offence of employing someone without permission to work in the UK. However, failure to carry out such checks can have serious implications if a worker is found not to have permission to work in the UK. A recent case in the Sheriff Court is illustrative of how an employer can be severely punished for this failure.

Illegal workers – details of the case

The pursuer, who owned and operated a takeaway in Bathgate, was served a penalty notice for £30,000 after employing two workers who did not have permission to work in the UK. The pursuer submitted information to the Home Office to the effect that he had known one of the illegal workers personally and had seen his driving licence, and believed that this person was entitled to work in the UK. In relation to the second illegal worker he argued that it he should not be held accountable as the worker was engaged during a period when the pursuer was off work due to illness.

The pursuer had exhausted the Home Office internal appeal provisions. He appealed the £30,000 civil penalty notice by lodging a Summary Application at Livingston Sheriff Court.

The decision of the court

The pursuer put forward the reasonable steps he had taken, relating to the fact that he had checked the worker's driving license, and had also checked a reference about the worker from a previous employer, Domino's Pizza. He admitted that he should have retained a photocopy of the driving licence, but thought that if Domino's were to hire him then he must have had the right to work in the UK. In relation to the second worker, the pursuer pleaded that he had only been employed one week and he was planning on asking him for identification imminently. Furthermore, the pursuer pleaded with the court that he would likely go out of business if the penalty was not reduced.

However, the defender argued that if the court were to take account of these mitigating factors, it would entirely undermine the operation of the statutory code. There would be no incentive to comply with the legislation.

The Sheriff sided with the defender. He ruled that record keeping lies at the heart of the system established by the 2006 Act and it is essential that employers understand and comply with it.

Practical consequences of this decision

This decision reinforces the seriousness of engaging a worker who does not have the right to work in the UK and the implications of failing to keep appropriate records. This obligation falls upon all employers, no matter how large or small, and establishing a system for compliance is key.

Also important to note is the equal application of a compliance policy to all – checks should not be carried out on the basis of race alone, otherwise an employer leaves itself open to claims for discrimination.

Get in touch

If you would like to find out more about the issues discussed in this article and how it may affect your business - as well as how to deal with its requirements - please get in touch with a member of our team.