Do you know who your drivers or operatives really are? Recent legislation has introduced much more stringent penalties for employing illegal workers. The effect for most employers in the transport and waste management sectors is a likely need to revisit their procedures for checking that employees are not working illegally.
Under the Immigration, Asylum and Nationality Act 2006, which came into force earlier this year, employers who employ illegal workers could face a fine of up to £10,000 for each illegal worker they employ. They may also face criminal prosecution.
For these purposes, an illegal worker would be a person who does not have current and valid permission to be in the UK and/or a person who does not have valid permission to do the type of work the employer is offering.
If the employer does not know that the worker is an illegal worker, there is scope for establishing a "statutory excuse" against liability for payment of the civil penalty, provided that certain original documents are checked and copied before the employee starts work and follow-up checks are carried out (usually on an annual basis) if required. There is no legal requirement to carry out the checks, but employers will not be able to benefit from the "statutory excuse" if they fail to do so. It is therefore a good idea for employers to review their current arrangements for carrying out checks on employees. For example, employers should:
(a) familiarise themselves with the document lists available in guidance provided by the Border and Immigration Agency and make sure that they carry out the appropriate checks;
(b) consider updating any standard application forms, offer letters or separate questionnaires currently in use to take into account the changes; and
(c) consider reviewing certain provisions in their employment contracts to give themselves greater protection in this area.
Many employers complain that this area of recruitment is fraught with danger as applying inconsistent checks can lay the business open to a potential claim of discrimination from a disgruntled applicant. If you are in any doubt as to how to proceed then please contact our employment specialists here at DSL.
Dyne Solicitors Limited - 01829 773100, info@dynesolicitors.co.uk
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