Barker Gotelee

New guidance brings extra work to employers

All farmers, road hauliers and any other rural businesses employing international workers need to be aware of the change to the law in February 2008 which increased the penalties for employing illegal workers. A Code of Practice has been issued by the UK Border and Immigration Agency which explains how penalties are awarded against employers and which documents should be checked to avoid employing illegal workers. From 29th February 2008 the following penalties apply to employers who employ individuals who do not have permission to work in the UK:- The civil penalty for negligently employing an individual without permission to work in the UK is a fine of up to £10,000 for each individual. The criminal offence of knowingly employing an individual without permission to work in the UK carries a penalty of two years in prison and/or an unlimited fine. An employer has a defence to the civil claim of negligently employing an individual without permission to work in the UK if it carried out certain checks. These are set out in appendix 1 of the Code of Practice issued by the UK Border and Immigration Agency called “Prevention of Illegal Working” which is available from www.bia.homeoffice.gov.uk. The Border and Immigration Agency had taken the view before February of this year that employers who employed individuals as a result of a relevant transfer from another employer (commonly known as a TUPE transfer) could rely on the checks made by the former employer. Their approach has now changed and employers now only have a 28 day period of grace following a relevant TUPE transfer to check their new employees’ documents. This means that if, for example, an employer successfully bids for a new contract to provide services for a new customer and employees automatically transfer to it as part of the transfer the employer must make sure it checks all of the new employees’ documents within 28 days. If you are an employer and employees have automatically transferred to you as a result of a relevant transfer (i.e. TUPE applied), in order to avoid sanctions being imposed by the UK Border and Immigration Authority you should check all documentation even if the transfer was longer than 28 days ago. Do be aware that only asking those individuals who appear to be foreign to provide their identification is likely to be discriminatory and you should ask every new or transferred employee to provide you with their identification documentation. The advice provided in this article is generic. If you would like detailed advice on any of the points raised please contact Sarah Gardner at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it Sarah is a specialist employment lawyer offering services to rural businesses. Sarah Gardner © Barker Gotelee