According to numerous press reports, the controversial 4 July 2016 raids by immigration officers on Byron Hamburgers Ltd allegedly resulted in the arrest of 35 people from Albania, Brazil, Nepal and Egypt. Subsequent reports suggest that 25 of those arrested on suspicion of committing an immigration offence have left the UK voluntarily or have been removed, whilst the remaining 10 are having their cases progressed by the Immigration Enforcement Unit.
Companies that are found to be employing individuals who do not have the right to work in the UK risk receiving a civil penalty of up to £20,000 per employee. As such, Byron could have been required to pay penalties in the region of £700,000. It is however understood that the company will not be facing any legal action.
Employers can establish a statutory excuse, thereby protecting themselves against civil penalties, by carrying out fully compliant right to work checks on each employee prior to the commencement of employment.
In order for right to work checks to be fully compliant, an employer must see an original right to work document, check the document in the presence of the employee and keep a clear copy of the document. They should also record the date the check was performed and the name of the person making the check on the employer’s behalf. This process, including the type of documents that are acceptable, is outlined in detail in guidance issued by the Home Office.
Employers are not expected to be experts in detecting false documents but should be satisfied that any document presented to them looks genuine, the photograph is that of the individual and all personal details are correct. A name spelt incorrectly, for example, could suggest that the document is false and should be investigated further rather than simply copying the document and placing it on file.
If an employer has not carried out fully compliant right to work checks and is found by the Home Office to be employing a person who does not have the right to work in the UK, it is likely that a civil penalty will be issued. The employer may receive a reduction in the penalty amount if:
- they reported to the Home Office that they had discovered that they had employed a person who does not have the right to work in the UK rather than this being discovered by the Home Office;
- they have actively cooperated with the Home Office; and
- can demonstrate that they have procedures in place to carry out right to work checks.
If the employer is deemed liable to pay a civil penalty and none of the above factors are relevant then the amount can still be reduced if the penalty is paid early.
In the current climate it is essential that all employers are carrying out adequate checks and are confident that all of their employees have the right to work in the UK. If you need advice on how to strengthen your organisation’s processes or you need assistance in dealing with a civil penalty notice, please contact us.
