This summer, popular restaurant chain Byron Burgers saw itself boycotted and pilloried after co-operating with the Home Office to help catch illegal workers – but strict new immigration laws meant the firm’s directors faced a stark choice.
The affair highlights the difficulties now faced by HR directors and the wider team, who must juggle issues of trust between employers and their workers, and an obligation to co-operate with officials on pain of punitive fines or even prison. Byron’s troubles apparently started when the Home Office became suspicious of the legitimacy of employee ID documents provided to the company as part of its usual right to work check procedures, and the damaging media storm that followed highlights the need for these processes to be completely watertight.
Byron’s problems come against the backdrop of a Government crackdown on illegal working. The criminal offence of employing illegal workers has been widened: where previously this offence could only be committed if the employer knew for a fact an individual was working illegally, that has been reduced to ‘reasonable cause to believe’. Alongside this much lower legal threshold, the maximum penalty has also been bolstered, from 2 to 5 years’ imprisonment, with the Home Office apparently determined to pursue criminal sanctions against the most senior officials in the business. Enough to give HR directors sleepless nights.
The Home Office can also impose a £20,000 civil penalty per illegal worker, and Byron was reportedly facing a fine of £700,000, with active collaboration the only way to mitigate its punishment. Clearly, it would take a very brave HR director to stand up to officials’ demands in such a situation, and HR strategy has to be directed at ensuring it never arises. Stringent right to work checks must be carried out prior to the individual starting employment with a business. Carrying out checks on day one is too late, as it is crucial to ensure illegal workers are kept out of the company altogether. But this alone is not enough: it is also important to remember that certain categories of worker require periodic follow-up checks to be carried out. This will require a reliable diary system to ensure nothing falls between the cracks. The latest right to work checklist and guidance can be found on the Government website. We recommend reviewing these documents afresh each time a check is carried out, as the Home Office frequently changes the rules.
It is imperative that checks are carried out diligently. If a document looks fake, or the picture doesn’t look like the worker, you are expected to pick this up. HR directors should ensure that anyone in the organisation with responsibility for recruitment and management of staff receives appropriate training in carrying out right to work checks. A ‘statutory excuse’ exists if checks have been carried out in accordance with Home Office requirements, so a business will not be liable for any illegal workers found if it can evidence that the correct checks were carried out. Good record-keeping is, therefore, crucial and all copies must be clear and dated.
The Home Office has wide powers to check for illegal workers and officials can make unannounced site visits. Information about employees has to be accessible while also complying with the Data Protection Act. HR directors would be wise to exercise particular caution when relying upon external parties such as agencies to carry out right to work checks: If the individuals are working on the company’s premises, responsibility lies with the company. Even where compliant right to work checks have been carried out, this is not the end of the story: Employers who suspect illegal working must report the situation to the Home Office, and ‘actively cooperate’ with its officers.
Byron faced protests and calls for a boycott for seemingly going out of its way to help officers catch illegal workers, but it is likely that Byron’s actions were at the request of the Home Office. Other employers have been asked to co-operate in this way, and generally speaking it will be better for them to do so even when they feel they are unwarranted, rather than pay a potentially large fine and then bring proceedings to challenge the penalty at a later date. In this situation, advice should be taken at each stage to ensure that your employer duties are not being breached – but negative publicity may be hard to avoid. Therefore, it is more important than ever that every business follows robust right to work check procedures, keeps detailed records and makes sure the status of all employees is up to date.
