Don't take chances on staff checks | Scottish Licensed Trade News

Scottish Licensed Trade News

Don’t take chances on staff checks

When hiring employees it’s vital business owners do everything they can to ensure any recruits are working in the UK legally, writes lawyer John Grant

THE reactions to burger chain Byron’s co-operation with the Home Office by arranging a staff “training day” which led to the arrest and subsequent deportation of illegally-documented workers have largely been negative towards the company.

• Lawyer John Grant said companies must check employees’ work status.

• Lawyer John Grant said companies must check employees’ work status.

However, employers need to look beyond the outrage, because the fact of the matter is that Byron acted as required as an employer in the UK.
The Immigration, Asylum and Nationality Act 2006 sets out the duties which employers must adhere to when employing UK workers and employees including part-time, temporary and seasonal staff.
Sections 21 and 22 of the 2006 Act make it a criminal offence, punishable by up to five years in prison and the imposition of an unlimited fine, for a person or a company to employ someone while knowing or having reasonable cause to believe that the employee is disqualified from employment due to their immigration status.
In Byron’s case, it seems that their employees had used fake documents to evidence that they had leave to work in the UK and so it appears that Byron was paying tax and National Insurance. However, while many will have sympathy for the workers, that does not provide a defence in law.

The fact is Byron acted as required as an employer.

In this instance, once they became aware of the position Byron had one of three options:
1. Tip-off the staff in its restaurants and risk prosecution for perverting the course of justice where a criminal investigation was ongoing.
2. Do nothing and let the Home Office take whatever steps it thought necessary but without maintaining any degree of control over the impact on its business and indeed its other staff.
3. Co-operate with the Home Office and comply with its legal obligations under the 2006 Act, which would also minimise its risk of fines or criminal proceedings.
When properly thought through, it should become apparent that this was the only real option open to them.
However, the biggest consequence for Byron is the damage it has done to its image, which can be hard to repair once public attention has moved on.
This underlines the importance of avoiding getting into a situation where you or your staff are potentially exposed to liability under the 2006 Act.
It is important to ensure that, when employing new staff, thorough ‘right to work’ checks are carried out.
It is vital that an employer:
• Obtains the original right to work documentation.
• Checks that photographs and dates of birth are consistent across the documents.
• Checks that expiry dates have not passed; and that there are no work restrictions that the worker is subject to.
• Ensures copies of their “right to work” documentation are taken, and that these are retained.
Evidence of such checks can be a mitigating factor should you discover that an employee is working illegally.
As an employer, if you are found to have employed an illegal worker, there is little you can do other than raise concerns that you may have a suspected illegal worker employed and actively co-operate with the Home Office in order to receive any further mitigation when liability is determined.

John Grant is a senior associate at legal firm Wright, Johnston & Mackenzie LLP.

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