What chemical sector companies need to know about illegal workers

• United Kingdom

• Industrials - Chemicals

11-05-2017

A significant percentage of workers in the UK chemicals industry are migrant workers, in 2015, migrant workers accounted for around 36% of the workforce in the chemical and related process operations. As we approach Brexit, employers in the chemical sector now more than ever before, need to ensure their employees have the right to work in their business. In 2016, both the offences and penalties relating to the employment of illegal workers broadened significantly, meaning mistakes can be extremely costly for a business both in monetary terms and in relation to reputational damage suffered.

The law and penalties

It is unlawful to employ someone who does not have the right to live and work in the UK or to employ a person who is working in breach of any conditions imposed upon them by the Home Office. Employers have an obligation to prevent illegal working. To comply with that obligation chemical sector companies will need to:

• carry out right to work checks on all prospective employees before their employment begins
• conduct follow-up checks on employees who have a time-limited permission to live and work in the UK
• keep records of all the checks carried out

• not employ anyone it knows or has reasonable cause to believe is an illegal worker

Three stage check

We advise our clients in the chemical sector to undertake the following three stage check:

0. obtain the employee's original documents proving their right to live and work in the UK
0. check that the documents relate to the individual in question and are original, unaltered and are valid

0. copy and keep the documents securely and record the date of the check and date for any follow-up check required

What original documents should be used?

Different documents must be used for employees that have a permanent right to work in comparison to those who have a time-limited right to work. A full list can be found in the Home Office’s ‘Employer’s guide to acceptable right to work documents’ available on their website. The most common documents for persons with permanent right to work are:

• a passport showing the holder is a British citizen or a citizen of the UK and colonies having the right of abode in the UK
• a registration certificate or document certifying permanent residence issued by the Home Office to a national of a European Economic Area country or Switzerland
• a permanent residence card issued by the Home Office to the family member of a national a European Economic Area country or Switzerland
• a certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer

The most common documents for persons with time-limited rights to work are:

• a current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question
• a current biometric immigration document issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question
• a current immigration status document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official
  document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer

What if the documents are fake?

Employers are not expected to be experts in identifying false documents, however they could still be liable to pay fines if it is ‘reasonably apparent’ to a person who is not trained in checking documents that the document is a fake. Employers are therefore urged to carefully examine documents when performing checks but are not required to use any technological aids. The documents that the employer checks should only be originals not copies and the employer should try and ensure they have not been tampered with in any way. Equally, employers should satisfy themselves that the documents provided relate to that employee, for example checking the picture on photo ID is a true likeness of the employee.

Penalties

If employers breach their obligations they may now be liable for both a civil penalty and they could also be found to have committed a criminal offence.

Civil penalties

The employer will be subject to civil penalty if it is found to employ someone who does not have the right to undertake the work which they are employed to do. The maximum fine is £20,000, which has doubled since 2014. When considering the level of fine to imposed the following will be considered:

• when employment commenced (the fine may be lower if the penalty for employing illegal workers was lower when the employment commenced)
• if the employer has committed previous offences in the last 3 years
• what measures the employer took to check the right to work
• if the employer reported suspected illegal working to the authorities
• if the employer cooperated with the authorities
• if the employer has an effective document checking process in place

If an employer fails to pay a fine in full within 28 days, enforcement action can be taken in the County Court. Within the 28 day period, the employer can also apply to pay in instalments or lodge an appeal.

An employer can avoid a civil penalty if it can show it undertook the three stage check above. If the employer has not retained copies of the documents it is highly unlikely it will not be able to avoid paying the penalty imposed.

Criminal convictions

A criminal offence will be committed if the employer knew or had ‘reasonable cause to believe’ that the employee did not have the appropriate immigration status. After a conviction an employer can receive an unlimited fine or imprisonment of up 5 years (or both). The term of imprisonment has more than doubled in the new legislation.

Site Closure

The Chief Immigration Officer also now has the power to issue an illegal working closure notice, to close a business premises for up to 48 hours whilst they apply for an Illegal Compliance Order, if the employer has either been convicted of employing an illegal worker, has been required to pay a civil penalty within the last three years or at any time if a civil penalty remains unpaid.

An illegal compliance order may be issued for up to 12 months and can include conditions prohibiting or restricting access of people to the premises, requiring a specified person to carry out right to work checks and to produce documents following such checks in order to prevent illegal working.

What happens to the worker?

A worker who is found to be working illegally can now also be prosecuted for illegal working and/or removed from the UK, as well as having their earnings seized because they are the proceeds crime.

What are the chances of getting caught?

Immigration officers now have increased powers to enter business premises to search for documents and to seize and retain evidence in relation to any potential offence. Immigration Officers may visit a business on their own volition if they suspect a business is employing illegal works or may act on tip offs from the community.

Due to the high fines, potential for criminal convictions and bad publicity employing illegal workers or not undertaking proper check is unlikely to be a risk many chemical sector companies want to take