Employer’s obligations to avoid fines
The current focus on discouraging illegal work is upon employers. Many employers are inadvertently caught out failing to follow the letter of the law and with fines at £20000 + it makes no sense not to understand fully what you need to do as a business to ensure that you do not fall foul of the law.
There are strict obligations to check documents before a person starts work. To avoid discrimination employers have to check everyone’s documents not just those of the perceived migrant. They should ideally take copies themselves although they can ask for copies to be supplied. The copies should contain a note of the date the document was checked and a signature or initials of the person who carried out the check.
Many employers get caught out because of a failure to check from a designated list of documents. Checking National insurance documents is not sufficient.
The main problem arises at the extension phase when passports are sent in and therefore not available. In these circumstances it is necessary to retain a copy of the application form and the receipt of postage and within 28 days contact the Employer Checking Service to obtain confirmation of the status of a person. This will provide a “statutory excuse” in other words a defence.
After employment ends it is necessary to retain documents for 2 years to ensure that the penalty is not applied.
A fool proof way to ensure compliance is to take a copy of the Code of Practice on illegal working which is available on the internet and to read and understand the processes and then follow them. There is no substitute for this.
In a climate in which the government has a low tolerance for those who engage illegal workers it makes sense, from a business point of view, to put processes in place to avoid the huge fines that are being levied. Shortly there will be more legislation to criminalise certain acts. This is the new reality that employers will have to incorporate among the myriad other areas of legislation elsewhere that shifts the responsibility on the shoulders of employers.
