Right to work From 29 February 2008, a new system of civil penalties takes effect, under which employers who negligently recruit illegal workers, without carrying out the required documentation checks, could be fined on a sliding scale up to a maximum of £10,000 for each illegal worker found at a business. Penalties are proportionate to the level of non-compliance in relation to the nature of checks that the employer has conducted. If employers are convicted of ‘knowingly’ employing an illegal migrant worker they could incur an unlimited fine and/or their directors be sent to prison for up to two years. An employer can appeal against any penalty notice, stating the full grounds of objection, and attaching any relevant proof of documentation checks carried out to support the appeal (the statutory excuse). Employers must undertake full document checks prior to the employee starting work. The relevant documents, known as List A and List B, are detailed in The Immigration (Restrictions on Employment) Order 2007 SI 2007 No 3290, see http://www.opsi.gov.uk/si/si2007/20073290.htm. Prospective employees with an indefinite right to work in the UK must produce valid documents from List A. These include a passport or full birth certificate issued in the UK. No further checks are then required during that employment. If the individual is unable to produce documents from List A, they must be asked to produce documents from List B. This means the individual has a limited entitlement to work in the UK and employers must make follow-up checks, no less frequently than every 12 months, to check on their continuing right to work. If subsequently the employee cannot produce a relevant document from List A or a renewed or extended List B document or this process is not ongoing, then the employment must be terminated. The UK Borders Act 2007 provides the legislative basis for the Government to introduce in due course a mandatory Biometric Immigration Document (BID) for non-European Economic Area nationals, which will indicate whether the named individual is allowed to stay indefinitely in the UK or has only been given temporary immigration status. The employer must take all reasonable steps to verify that any documents produced are valid. Employer responsibilities include: checking photographs for true likeness, dates of births for authenticity, any expiry dates, that the person is the rightful owner of the document and the document is not an obvious forgery. The employer must retain the copy or copies securely for a period of not less than two years after the employment has ended. From 29 February 2008 two statutory Codes of Practice come into force. The first explains how civil penalties are determined, the other, entitled Guidance for Employers on the Avoidance of Unlawful Discrimination in Employment Practice While Seeking to Prevent Illegal Working, providing employers with guidance on how to avoid a civil penalty in a way that does not result in race discrimination. These codes and other online guidance on employing migrant workers are available at: http://www.bia.homeoffice.gov.uk/employingmigrants. The Employers’ Helpline number is 0845 010 6677. Paul Tew, Pay Magazine Snowdrop provides a range of Payroll solutions that are fast, flexible and easy-to-use, to suit the many and varied needs of each organisation. To find out more about the software and services that we provide, please click here >>