Employing migrant workers

The subject of employing migrant workers has been in the news a great deal this year following the Brexit vote and the raid on the restaurant chain Byron Burgers, serving as a reminder for health service employers of how important it is that they are up to speed with their legal duties in this area. Nicole Johnson from Capsticks reports.
 
 
The impact of the UK’s departure from the EU on health service workforces, where migrant workers are heavily relied upon, will not be seen for some time. Given the absence of any assurance for EU workers from the government about their post-Brexit future, it is unsurprising that there has been a rise in applications for citizenship. Employers may wish to make employees aware that those who have worked in the UK for at least five years may apply for Permanent Residence to try and avoid disruption when the time comes for the UK to leave the EU.
Moving away from the impact of Brexit, we look below at some of the points health service employers should be aware of when employing migrant workers.
Civil penalty notices
The clamp down by the Home Office on illegal working over the past few years hit the press this summer with the Byron Burger raid. Of course, most employers will know that they must not employ illegal workers, but some may not know just how significant the fines are when they do so.
Where an employee is employing someone illegally in breach of the Immigration, Asylum and Nationality Act 2006, the Home Office may issue a Civil Penalty Notice (“CPN”) starting at £15,000 and up to £20,000 per employee found to be working illegally (subject to mitigation that can be relied upon to reduce the sums payable under the CPN). A failure to pay the CPN can result in enforcement action being taken to recover the sums payable under the CPN.
Employers have a legal duty to undertake the appropriate checks for all employees to ensure they have the right to work in the UK. These checks are necessary for the following reasons:
  • To ensure that all reasonable steps are taken to avoid employing an illegal worker in the first place
  • As evidence of a statutory excuse meaning that the organisation is exempt from a CPN
  • As mitigation that could be relied upon to reduce the level of the CPN (e.g. potentially a drop in penalty from £15,000 to £3,500 if the organisation is in breach).
It is therefore vital that employers obtain the correct documentation from prospective workers and that they:
  • Obtain the person’s original documents, check them in the presence of the holder; and make and a complete and clear copy, and make a record of the date of the check
  • Retain these records for the duration of employment and two years after employment has ended
  • Properly check the document so that the employer is satisfied that it is valid.
Employers are expected to take reasonable steps to check the documents provided by the potential employee; they are not required to be experts on forgeries.
Where an employee provides documentation which gives them limited permission to work in the UK, they should be required to produce documents at various intervals, in order that an employer can avoid a civil penalty.
It is important to note that the fact that an employee has TUPE transferred to a transferee will not exempt the transferee organisation from having to ensure that each transferring employee has an entitlement to work in the UK. These checks should therefore form part of the due diligence exercise.
Criminal penalties

In addition to the civil penalty, there are also potential criminal penalties for employing illegal workers. The Immigration Act 2016 introduced an extension of the criminal offence of knowingly employing an illegal immigrant to include circumstances where an employer has ‘reasonable cause to believe’ that a person is an illegal worker. This provision came into force on 12 July 2016. Criminal penalties can now include a custodial sentence of up to five years and/or an unlimited fine.

Nurses and midwives

In the healthcare sector, right-to-work issues arise frequently in respect of nurses and midwives who have trained outside the EEA and wish to work in the UK. Such nurses and midwives must pass the Objective Structured Clinical Exam (OSCE). These workers are permitted up to three months from their employment start date (noted on their Certificate of Sponsorship) to sit the OSCE and during this period they can be legally employed as a pre-registration candidate.

Where an individual fails the OSCE, they are entitled to re-sit the test within a maximum of eight months from the start date of their right to work visa. However, unfortunately, if they fail their resit, they will have to leave the UK immediately as they will no longer have the right to work. It is important that HR departments make a note of the three-month deadline as a reminder to obtain the OSCE certification, and where the worker has failed, that the eight-month deadline has also been noted.
Dismissing employees with no right to work

Dealing with employees who do not have the right to work is an increasing problem for health sector employers in circumstances where there is little clear guidance about how quickly they should address this issue when information comes to their attention.

In many cases, the employee in question will not have worked for his/her employer for two years or more, and so will not have the right to claim unfair dismissal. As such, if the employer dismisses the individual immediately, and without a minimum dismissal process, the employer will not be at risk of a successful unfair dismissal claim. The employer should, however, still be satisfied that it has sufficient evidence to dismiss, to avoid in particular any claim of discrimination contrary to the Equality Act 2010.
The more difficult situations arise when individuals have been employed for more than two years and therefore have unfair dismissal rights when both a fair reason for dismissal and a reasonable process are required. While an employer can rely on the ‘statutory illegality’ reason and dismiss immediately without notice and without having followed any process, that reason will only be permissible where the individual actually does not have the right to work.
In some cases, where it has later been found that the individual did in fact have the right to work, that has led to a finding of unfair dismissal. This is despite the fact that in dismissing the employee, the employer relied on information received from the Home Office regarding the right-to-work status of the employee, which it subsequently transpired was inaccurate. It has therefore become common practice to dismiss the employee in question on the grounds of ‘some other substantial reason’ (SOSR), based on the belief of the employer that the individual no longer has the right to work in the UK.
Employers will be aware of the ACAS Code of Practice on Disciplinary and Grievance Procedures and that, where the Code applies, a breach of it can lead to an uplift of up to 25% to compensation awarded for unfair dismissal. For some time, there has been debate about whether the Code applies to SOSR dismissals but in the recent case of Phoenix House Ltd v Stockman 2016,the Employment Appeal Tribunal confirmed that the Code does not apply to SOSR dismissals and therefore the uplift will not apply which will be welcomed by employers.
With regard to the correct process to follow in SOSR dismissals, the Code recommends a minimum three-step process (investigation, hearing and appeal), and in practice the Phoenix House decision may now give employers the ability to effect more rapid dismissals, without fear of additional financial penalties, in cases where the employee no longer has the right to work in the UK.
It is recommended that a minimum procedure should involve:
·         A discussion with the employee about their immigration status
·         Enquiries about any application to extend a right-to-work visa
·         Contact with the Home Office through their employer checking service
·         Documenting findings which justify a decision to dismiss.
Conclusion
Where employers are reliant on migrant workers, it is essential that HR departments are fully aware of their responsibility to ensure that right-to-work checks are carried out. The Home Office clampdown and the significant sums which employers could be requested to pay under a CPN for every employee working illegally will no doubt provide an incentive for many to review current practices and procedures so that they are confident that HR are taking the necessary steps to avoid a penalty.
It is recommended that employers familiarise themselves with the Home Office guidance on right to work checks which was published in July 2016:
 
 
Nicole Johnson
Solicitor, Employment Department
Capsticks