While the political debate continues over the Government’s immigration policy, the experience of Mark Harper – the former immigration minister behind the controversial “Go Home” advertising campaign – is a wakeup call to all employers, especially those who engage domestic staff such as cooks, cleaners and home carers. Helga Breen, Head of Employment, London, at national business law firm DWF, explains employers’ responsibilities when it comes to pre-employment immigration checks.

In a high-profile move, Mark Harper was forced to resign recently after it came to light that his South American cleaner, Isabella Acevedo, had apparently duped him into believing she was entitled to work in the UK. Harper claimed that when he hired Acevedo in 2007, he checked and took copies of her passport and a Home Office letter giving her indefinite leave to remain and work in the UK. However, Harper says he then lost the copies and, after carrying out further checks more recently, her documentation was found to be invalid.

What the law says

Under current legislation, it is a criminal offence knowingly to employ an individual who does not have the requisite permission to work in the UK. All employers are required to carry out checks before individuals commence working for them and keep a record of these checks. Employers who breach these rules face a civil penalty of up to £10,000 and this is likely to increase on 6 April 2014 to £20,000, with £15,000 payable for a first offence.

Duties for employers

For employers, it is not always easy to tell if an overseas national is allowed to live and work in the UK and companies can be confronted with a confusing array of immigration categories when filling out forms. Individuals from the 27 EU member states (including Romania) and from Iceland, Liechtenstein, Norway and Switzerland are permitted to work here without restrictions, as are those who are legally settled here through marriage, right of abode or indefinite leave to remain. However, those who are subject to immigration control have restrictions placed on their period of stay and their ability to work.

In the first instance, employers should check original documents stating the prospective employee’s right to work in the UK and take copies as evidence. In certain cases, employers may have to conduct those checks annually. If employers are in any doubt, they should consult the comprehensive guide issued by the UK Border Agency to help identify false documents.

Strictly, these pre-employment immigration checks need only be conducted on individuals about to be employed under a contract of service or as an apprentice. Those who engage domestic workers such as cooks, cleaners, gardeners, nannies and home carers may assume that they aren’t obliged to make checks, especially if they pay in cash and don’t provide an employment contract. However, this is a dangerous and costly assumption

A person’s employment status is determined by what they do and how they do it rather than how they are paid or whether they have a written contract. In the eyes of the law, domestic staff may well have the status of ‘employee’ with employment protection rights such as limits on their working hours, rights to a written statement of their employment terms, rest breaks, holiday pay and a minimum wage. As well as potentially falling foul of employment and immigration laws, those who pay cash to their domestic helpers could also face large financial penalties for failing to pay the national minimum wage or to deduct and account for PAYE income tax.

While specific details about Mark Harper’s case are not clear – what checks he carried out, why the court decided not to issue a fine as they did with others such as Baroness Scotland in 2009, etc – his experience serves to alert businesses to the risks of hiring individuals not permitted to work in the UK. More than 200 employers have been prosecuted for such offences since 2008 and, as the campaign against businesses employing illegal immigrants shows no sign of abating, this number is likely to increase. Given the hefty penalties involved for employers who do not take care to make the necessary checks, as well as the potential for negative publicity and damaged reputation, every business should make sure they understand their obligations and carry out the necessary searches.

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Helga Breen, Partner and Head of Employment, London, at national business law firm DWF