Illegal Workers - A Meaty Issue?

Published byJohn Grant

11th August 2016

• Tip - Obtain Proof, Check It and Retain It
• The Employer's Options
• The Law

Burger chain Byron have been in the news because of their co-operation with the Home Office on illegal workers.

The reactions to what they did to co-operate with the Home Office (they arranged a staff “training day” which ensured their employees were all in the one place and led to the arrest and subsequent deportation of illegally documented workers) have largely been exceptionally negative towards the company, and have included protestors reportedly releasing cockroaches into their premises.

However, employers need to look beyond the social media outrage, because the fact of the matter is that Byron acted as required as an employer in the UK.

Tip - Obtain Proof, Check It and Retain It

It is important to ensure that, when employing new employees, thorough “right to work” checks are carried out. It is vital that that an employer:-

• Obtains the original “right to work” documentation.
• Checks that photographs and dates of birth are consistent across the documents provided.
• Checks that expiry dates have not passed; and that there are no work restrictions that the worker is subject to.
• Ensures that of their “right to work” documentation are taken, and that these copies are retained. Evidence of such checks can be a mitigating factor should you discover that an employee is in fact, an illegal worker.

As an employer, if you are found to have employed an illegal worker, there is little you can do other than raise concerns that you may have a suspected illegal worker employed and actively co-operate with the Home Office in order to receive any further mitigation when liability is determined.  

Further information can be found in the Government's Code of Practice, which can be found here.

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The Employer's Options

In this instance, once they became aware of the position, Byron had one of three options:

• Tip-off the staff in their restaurants and risk prosecution for perverting the course of justice in circumstances where a criminal investigation was ongoing;
• Do nothing and let the Home Office take whatever steps they thought necessary but without maintaining any degree of control over the impact on their business and indeed their other staff; or
• Co-operate with the Home Office and comply with their legal obligations under the 2006 Act which would also minimise their risks of fines or criminal proceedings.

When properly thought through, it should become apparent that this was the only real option open to them, so the criticism of their actions needs to be seen in this context, albeit this has had consequences for them.  The biggest consequence for Byron is the damage it has done to their image, which can be hard to repair once public attention has moved elsewhere.

This underlines the importance of avoiding getting into a situation where you or your staff are potentially exposed to liability under the 2006 Act.

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The Law

The Immigration, Asylum and Nationality Act 2006 (“2006 Act”)  sets out the duties which employers must adhere to when employing UK workers and employees including part-time, temporary and seasonal staff.

Sections 21 and 22 of the 2006 Act make it a criminal offence, punishable by up to 5 years in prison and the imposition of an unlimited fine, for a person or a company to employ someone while knowing or having reasonable cause to believe that the employee is disqualified from employment by reason of their immigration status.

In Byron’s case, it seems that their employees had used fake documents to evidence that they had leave to work in the UK and so it appears that Byron were paying tax and National Insurance. However, while many will have sympathy for the workers, that does not of course, provide a defence in law.

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