In July, 35 members of staff at the Byron chain of restaurants were arrested for suspected immigration offences. It has been reported that the Home Office acknowledged that Byron had carried out the correct right to work document checks but had been shown false papers. As Byron was found to have been "fully compliant with immigration and asylum law in its employment practices", it will not face civil penalty action.
Although this was a situation where the employer had apparently been given false documentation, and no sanctions were imposed on Byron, it is a useful reminder of the obligations on employers when employing foreign workers. Employers must carry out an initial right to work check on every prospective employee before the employment commences to ensure that workers are permitted to work in that particular role. The checks must be repeated where the employee’s permission is time-limited.
Employers of illegal workers can face a civil penalty of up to £20,000 per illegal worker. In addition, following changes to the immigration regime which came into force on 12 July 2016 under the Immigration Act 2016, it is now a criminal offence to employ someone where there is reasonable cause to believe that that person is an illegal worker. The sanction for the criminal offence is up to 5 years’ imprisonment and/or an unlimited fine.
The Byron case is also an indication of the willingness of the Home Office to intervene and clamp down on illegal working which, together with recent cases about the revocation of licences for employing illegal workers and loss of sponsorship licenses because records are not up to date, could be a particular concern for employers in the hospitality and retail sectors.
For employers concerned that they may be relying on false documentation, the Home Office guidance: Employers’ Guide to Acceptable Right to Work Documents provides that employers are not expected to be experts in identifying false documents. Liability to pay a civil penalty only arises if the falsity of the original documents is "reasonably apparent", ie a person who is untrained in the identification of false documents, examining it carefully, but briefly and without the use of technological aids, could reasonably be expected to realise that the document in question is not genuine. However, even if a document is genuine, employers also need to check that the person presenting the document is the person referred to in that document.
Whilst in this particular case no applications appear to have been made to review the alcohol premises licence, authorities in other parts of the country have successfully applied for revocation of licences where immigration offences have been committed.
This is another timely reminder for all employers in the hospitality and leisure sector to ensure that all of their employees have the right to work.
For more information about the steps employers should be taking to check their employees’ status and avoid falling foul of either employment or licensing regulations, please do not hesitate to contact Ewen Macgregor, Laura Daniels or Rachel Jones.