The thorny issue of employing illegal workers

The Scottish Independence referendum is nearly here and after a summer of debate over the subject, it will be very interesting to see what the final outcome is this week.

By Karen Credie, KMCHR.

One of the topics that piqued my interest during the debate over Scottish independence has been the question of whether Scottish citizens, and therefore workers, would become ‘foreign’ in definition to the rest of the UK population.

If Scotland vote ‘yes’ in the referendum but stay in the EU, there wouldn’t be any issue for businesses in the remaining UK countries employing Scottish workers. However, if Scotland does vote for independence on 18 September, we may well see changes in employment legislation introduced in Scotland which could have implications for businesses that employ staff on both sides of the border.

If Scotland were to leave the EU, the case could be quite different; and a scenario where Scottish workers did not have automatic eligibility to work in the other UK countries could arise.

This makes for an interesting situation and some high profile companies and financial institutions have already indicated that they will relocate their company registration, and possibly their staff, south of the border in the event of a ‘yes’ vote.

Scotland aside, employing foreign workers is an interesting topic from an HR perspective. A study released only a couple of weeks ago found that foreign workers bring a £210bn boost to the UK each year and skilled ‘inpats’ account for 15pc of all output in the economy.

Of course, the legitimate employment of foreign workers can have multiple benefits for businesses; bringing in skills that are perhaps at a shortage amongst home-grown workers or simply fulfilling roles that British staff are reluctant to take on. The problems come when employers, perhaps even unwittingly, take on staff that are not eligible to work in the UK. Companies that are found to be employing illegal workers can face penalties of up to £10,000, and knowingly employing illegal foreign workers is a criminal offence – carrying a jail term and an unlimited fine.

It is important to highlight that it is the responsibility of employers, not anyone else, to check that an employee/potential employee is eligible to work in the UK - ignorance is not an excuse in the eyes of the law.

It is recommended when recruiting to obtain proof of eligibility to work in the UK and to provide details of the documentation you require at the time of making an offer of employment. Original ID documents, ie. Passport, and any work permits, should be produced and copies taken and kept on the employee’s personnel file.

If you are employing a foreign national with a work permit, check that the paperwork is legitimate and double check relevant dates and signatures. One way that employers can easily fall foul of the law is if visas expire and replacements are not sought from the employee. It is sensible to set electronic reminders for the expiration of all visas.

A periodic review of all staff personnel files and ID’s with regards eligibility to work in the UK is also advisable. Better still, why not invest in a cost-effective HR online management system that will automatically set reminders regarding expiry dates for a host of documents, such as passports, driving licences and visas. Employing foreign nationals can be a thorny issue for employers and it is important to take specialist HR advice. For more information on this topic in particular, or indeed any other HR or employment law matter, please get in touch with us.