Q. I interviewed a foreign national last week for a job which she would be ideal for. However, she was not able to produce any identity papers and I am concerned that she may be in this country illegally. I am aware that a Government Minister was recently found guilty of employing a person in a similar position and I don't want to make the same mistake. What is the law?
A. It's unlawful to employ someone who is not entitled to work in the UK or who is working in breach of their conditions of stay in the UK. An employer who knowingly employs someone who is not entitled to work in the UK will commit a criminal offence and could be liable to a custodial sentence of up to two years and/or an unlimited fine.
Furthermore, an employer who negligently employs someone who is not entitled to work in the UK is liable to a civil penalty of up to £10,000 in respect of each individual. In 2008 there were 233 civil penalties imposed for illegal working, a significant increase on the 40 penalties imposed in 2007. However, the employer will have a statutory defence to the civil penalty if he checks certain original documents before employing the individual.
You should therefore insist that she provides original documents to establish her eligibility to undertake the work on offer before employing her. Conducting the checks on the date of commencement of employment will not entitle you to use the defence. If she is not able to produce these documents then you must not employ her, no matter how suitable she may be.
For specialist legal advice contact Keith Swan of Patterson, Glenton & Stracey Solicitors by email at ks@pgslaw.co.uk or by telephone on 0808 231 7043. Patterson, Glenton & Stracey Solicitors have provided legal advice to the people of South Tyneside for over 125 years. For details of their full range of services and to view previous Gazette articles please log on to www.pgslaw.co.uk . Patterson, Glenton & Stracey Solicitors - The Logical Answer.
