Comment Magazine Issue 7

Employing foreign workers
now and in a post-Brexit world
Charlotte Allery outlines the key practical considerations for business and
family employers taking on foreign workers in the UK and considers the
unknown post-Brexit landscape.
The ease of travel and mobility means
that the world has become a smaller
place and businesses are seeing an
increasing number of foreign applicants.
With skills shortages in most sectors
and an ever-globalising world, many
employers value these overseas workers
with the knowledge and skills they can
bring.
Whilst foreign workers can be a valuable
addition to any business, employers need
to bear in mind their legal obligations.
Recent figures from the Home Office reveal
that getting it wrong can be an expensive
mistake, with £10.5m in penalties being
issued to employers with illegal workers
between 1 January and 31 March 2017.
Right to work in the UK
All employers, irrespective of size or
sector, are required to prevent illegal
working in the UK by confirming that
all potential employees and workers are
entitled to work in the UK.
Employers that fail to adequately carry
out a right to work check and employ an
illegal worker can face tough sanctions,
including a penalty of up to £20,000 per
illegal worker. It is also a criminal offence
to knowingly employ someone who
does not have the right to work in the
UK, which can result in a prison sentence
of up to five years and an unlimited fine.
These checks involve following
three steps for each worker:
1. Obtaining specific original documents
as specified by the Home Office, such
as a British passport;
2. Checking the validity of the
documents in the presence of
the worker; and
3. Making and retaining a clear copy,
together with the date of the check.
We recommend that offers of
employment are made conditional on
the individual’s eligibility to work in the
UK being satisfied and, if you are in any
doubt about an individual’s right to work
in the UK, seek legal advice or contact the
Home Office directly before employing
the individual.
Employment rights
Foreign employees working for
employers in the UK will be entitled
to the same employment rights as UK
citizens, such as the National Minimum
Wage, paid annual leave and protection
from discrimination.
However, employers should be
mindful that some foreign workers may
be restricted on the number of hours
they can work, in what capacity and for
what period. Information on restrictions
can be ascertained from an applicant’s
documentation, such as a visa. Further
information should be sought from the
Home Office if there is any uncertainty.
Avoiding discrimination claims
Whilst employers are, of course, entitled
to recruit the best candidates for a
job, race, nationality or ethnicity of a
candidate should not be a factor in the
recruitment process. Race is a protected
characteristic under the Equality Act
2010, meaning that an individual will
have a claim for discrimination if they
have been treated less favourably on the
basis of their race or nationality.
Employers should ensure that they
are carrying out right to work checks
consistently for all potential employees.
Remember not to make any assumptions
about a person’s immigration status on
the basis of their race, nationality, ethnic
origins, accent or the length of time they
have been resident in the UK. A blanket
policy of only carrying out right to work
checks on individuals who appear to
be ‘foreign’ is likely to lead to claims of
discrimination.
What about the self-employed?
Whilst the legal obligation to carry out
right to work checks will not apply to
any self-employed contractors
you engage, there are compelling
commercial reasons for carrying out
such checks. In the event that the
individual’s self-employed status is
challenged and they are found to
instead be an employee or worker,
you will have already complied with
your legal obligations in respect of
immigration checks.
Further to this, if an illegal worker is
removed from your business, it may
disrupt your operations and could cause
widespread reputational damage. From a
risk management perspective, the illegal
status of your contractors or consultants
may also result in an invalidation of
any insurance you hold, such as public
liability insurance.
What if I employ foreign nationals in
my home?
Where you employ a nanny, carer or
personal assistant to carry out work for
you in your own home, you will need to
comply with your legal obligations as an
employer in the same way as a company
would. As such, you will need to carry out
right to work checks on these individuals,
regardless of their nationality. You will
also need to consider all other usual
employer obligations, such as income
tax and National Insurance deductions,
paying the National Minimum Wage etc.
A post-Brexit world
In the immediate and mid-term
aftermath of the UK’s vote to leave the
EU and Theresa May’s triggering of Article
50, nothing has changed. Employers
should continue to employ EU workers
as they always have done, ensuring that
right to work checks are carried out as
currently stipulated by the Home Office.
However, the long-term impact on the
employment of EU nationals is unclear.
In June this year, Theresa May
confirmed that EU nationals and their
families who have spent five years in
the UK will be able to apply for ‘settled’
status to obtain the same rights as UK
citizens. However, the Government’s
further immigration plans are anything
but settled. In September this year, a
Home Office document leaked to the
press outlined for the first time how the
Government intends to approach the
politically charged issue of immigration.
Whilst the leaked document was in
draft form and has not yet been signed
off by Ministers, it suggests that free
movement of labour will end upon exit
from the EU in March 2019. Among its
82 pages, the document also suggests
that low-skilled migrants will be offered
residency for a maximum of two years,
while those in high-skilled occupations
will be granted permits to work for a
longer period of three to five years. It also
proposes that the UK will adopt a more
selective approach to immigration based
on the UK’s economic and social needs.
The Government has said that it will be
setting out its initial proposals for a new
immigration system later in the autumn.
Whether these leaked ideas are the reality
of the future, and what this ultimately
means for employers relying on EU
labour, unfortunately remains to be seen.
Coffin Mew’s Top Tips
• Don’t forget to carry out right to
work checks on all employees or
workers.
• If you are in any doubt about an
individual’s immigration status,
seek legal advice or contact the
Home Office directly before
employing them.
• If EU nationals you employ
are concerned about their
immigration status, reassure
them that there is no immediate
impact on their employment.
• If you typically employ EU
nationals, keep abreast of the
Government’s immigration plans
post-Brexit.
• If a foreign worker does not have
the right to work in the UK, you
may be able to issue sponsorship
certificates to the individual so
that you can employ them. In
order to do this, you will need
a sponsor licence. Contact UK
Visas and Immigration directly
to confirm your eligibility as a
sponsor and the type of licence
you require.
Contact us direct
Charlotte Allery
Solicitor - Commercial
& Employment Services
023 9236 4310
charlotteallery@coffinmew.co.uk
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