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Employing overseas workers – are you on the right side of the law?

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03rd May 2016

Employing overseas workers – are you on the right side of the law?

Holiday park owners will know only too well about the need, often at short notice, to get the right staff in to help out on the site’s bars, restaurants and other facilities. Yet, with many park owners taking on staff from overseas (both temporary and long term job positions) it’s important that they don’t rush the process and unwittingly find themselves on the wrong side of the law. John Clement, a partner and park law specialist at IBB Solicitors, takes park owners through some of the checks that need to take place  in advance of employing someone from overseas.

Imagine the scenario – a record season of people pitching on your site.  But you need to ensure the facilities are offering the right levels of service.   You need people to employ more staff quick.   The good news is you have an even bigger pot of people to choose from, as more people from overseas are seeking work in the UK. Trying to fix a staffing challenge, is something many of us have or will experienced but when you are recruiting overseas staff, do realise that unless you go through the appropriate channels and checks you could find yourself in deep legal waters.

Immigration laws have tightened up over the past few years, so it will be your responsibility to make sure that you, as the employer, are not employing illegal workers and checking their immigration status.  Assessing a prospective worker’s eligibility for employment, will include the type of work they can do, and the amount of hours they can work.

What are the steps that you should be looking into?

Document checks

Do make sure that you, as the employer, are carrying out document checks on prospective workers before you employ them, to ensure that they are legally entitled to work in the UK. The Home Office have established a 3-step process for potential and existing workers.

Initial checks

Step 1

It is your responsibility, as the  employer, to obtain original versions of one or more of the acceptable documents relevant to those people who have a permanent right to live in the UK, documents of which are:

  1. a British passport;
  2. a European Economic Area (EEA) or Swiss passport;
  3. a permanent residence document issued to an EEA or Swiss national or their family member;
  4. a Biometric Residence Permit (BRP) showing no time limit restrictions; or
  5. a permanent residence stamp/endorsement from an individual’s passport.

For temporary rights to work, you should also check for one of the following:

  1. Make sure the applicant has a current passport or BRP Permit endorsed to prove that he or she is  allowed to stay in the UK and do the work in question; or
  2. A current Residence Card (Accession Residence card or Derivative Residence card) issued by the Home Office to a non – EEA national who is a family member of an EEA national; or
  3. Make sure the applicant has an immigration status document with a photograph together with an official document giving the persons national insurance number showing they are entitled to do the work in question.  

For those who have made an application to the Home Office to vary or extend their leave in the UK, the employer must check the applicant has one of the following:

  1. a positive verification notice issued by the Home Office Employer checking service;
  2. a certificate of application issued by the Home Office to a family member of an EEA national stating that the holder is permitted to take the employment in question together with a positive verification notice; or

(iii) an application registration card stating the holder is permitted to take the employment in question together with a positive verification notice

Follow up checks

Simply checking the documents is not enough.  You will also need to  ensure that carry  follow up checks are carried out and this will depend on the type of permission the applicant has to be in UK. For  applicants who have a permanent right to be in the UK, the check will only ever need to be carried out once and this is before employment starts. For all applicants the checks will need to be carried out before the employment starts.  In addition to this, for  those who have a temporary right to be in the UK, the check will need to be carried when permission to be in the UK(as stated on the document checked) expires. For those who have made an application to the Home Office, in addition to checking the documents before the start of the employment, the check will need to be carried out again after six months, as set out in the positive verification notice.

Step 2

Do also  make sure you are taking reasonable steps to check that it is genuine and the prospective worker is the rightful holder. This can be done by checking that the prospective worker’s date of birth is consistent and checking any photographs are a true likeness of them.

Don’t forget to also check that the person’s visa expiry date has not passed (an oversight that happens more than you think) and that they are able to continue doing the type of work by checking their BRP, visa or stamps in their passport.

You MUST be satisfied that the documents are genuine.  If you are in any doubt, for example when two documents are in difference names, you should request further documentation such as a marriage certificate or deed poll reflecting change of name. 

Step 3

Make sure you take a photocopy or scan of the prospective worker’s passport including the personal details page, both sides of a BRP and any pages with visa stamps showing their right to work in the UK. These must be kept for the duration of a worker’s employment and for a further two years after and the date on which these copies are taken should also be noted. 

Consequences of not being compliant

Fixing a staffing situation means that you could be tempted to cut corners and fast-track the process.  The short answer is don’t! If you don’t go through the processes outlined above and employ an illegal worker, then be prepared to face something much graver than a shortfall of staff.  Even if you have been found to employing an illegal worker more than three years ago,  you could find yourself being given a warning notice and  facing penalties of  starting from £15,000 and depending on the severity of the situation, you could be imposed with criminal sanctions, up to two years imprisonment.

The punishment gets worse if you have been found to be employing illegal workers within the previous three years. The starting penalty is £20,000 before any mitigating factors are considered. In this instance the minimum penalty amount is £10,000 and a warning notice cannot be issued.

Does an employer have a statutory excuse?

There are some instances where you as the employer have what’s called a ‘statutory excuse’ to avoid liability for a civil penalty – for example if you have followed steps 1-3 before a worker commences employment and has evidence of this. You must also have carried out the follow up checks as and when required.

However you will not have a statutory excuse if you have accepted a document where it is reasonably apparent the person presenting the document is not the rightful owner, the document is false, or if an employer has accepted documents where the person is not allowed to work or live in the UK.

Avoid discriminating against applicants

Finally, if you are employing staff from overseas do make sure that during the recruitment process you are not discriminating against those that apply for the jobs.  It happens more than you think and employers aren’t often aware they have done anything wrong.

For UK park owners, the Equality Act 2010 states clearly that you must not, as the employer,  carry out document checks on workers and prospective workers based on their colour, ethnic or national origin only, as this would constitute discrimination. 

  • Do realise that refusing all non-EU applicants for a job would be regarded as direct race discrimination
  • Do be aware that asking for all applicants to have GCSE English would be regarded as  indirect discrimination.
  • Do make sure you have clear written procedures for recruitment and selection which are fair and equal for all applicants.
  • Do not  make assumptions about a person’s immigration status on the basis of their accent, colour, or nationality. A person with limited leave to remain must not be treated less favourably than those with no time limit restrictions. They must be offered the same training, benefits, services, and promotions.
  • Do be aware that you should only question an applicant’s immigration status in order to determine the number of hours they are permitted to work. This is to ensure that they are not working over the permitted number of hours as this would mean that they would be breaching their conditions of leave.

Making sure you are fully compliant will undoubtedly add more time onto the recruitment process.  However failure to so or fast-tracking without checks could mean the cost of employing overseas staff is a lot more than you ever bargained for.

Needs Dev John Clement

Contact

John.Clement@ibblaw.co.uk
01895 201721