Buddy says: Under the government’s new proposals this year, fines for employing illegal workers are set to double. In very serious cases employers could face imprisonment of up to 2 years. In order to avoid these harsh penalties, employers will need to make pre-employment checks mandatory.

You should ask your employees to produce a single document, or a combination of documents which confirm their eligibility to work in the UK.  An example of this would be a passport showing that the employee is a British citizen or a national of the European Economic Area or a letter issued by the Border and Immigration Agency (BIA) showing that the person is allowed to take up employment, together with an official document confirming their name and National Insurance number. The documents which are acceptable for these purposes are described in List A and List B of the BIA’s Code of Practice appendix.

In addition the you must:

• Take reasonable steps to check the validity of the documents;
• Keep copies of the documents for at least 2 years after the employment terminates;
• Satisfy yourself that any photographs in the documents are of the employee;
• Satisfy yourself that the employee’s appearance is consistent with any date of birth in the documents;
• Copy specified pages of any passport or other travel document in a format that cannot subsequently be altered e.g. any page which contains the holder’s personal details, photograph, date of birth and/or signature.

Employer information:  If an employee produces documents with different names you must verify the change in name by asking for additional documentation to confirm the new details. Examples of these include a marriage certificate, a divorce decree or a deed poll document.

It is paramount that these checks are carried out before the worker takes up employment, or on the first day of employment at the very latest. There is an exception to this under TUPE, when an employer has a period of 28 days from the date of transfer, in which to confirm the eligibility of the transferred employees, and copy any necessary documents in order to rely on the defence.

When the new legislation comes into force on 29 February 2008, employers who are found to be employing one or more illegal migrant workers could be fined up to £10,000 per worker. Each case will be looked at individually according to the sliding scale set out in the BIA draft statutory Code of Practice.

The Code sets out a sliding scale of minimum and maximum amounts and takes into account the following:

• Any previous offences committed in the last 3 years;
• Whether or not the employer has reported any suspected illegal workers; and
• The extent to which the employer has cooperated with the detection and detention of the illegal worker(s).

Ways to avoid any penalty is to ensure that prior to the employee taking up work, you have obtained certain documents confirming the employee’s eligibility to work in the UK and that you have taken reasonable steps to check the validity of the documents. Where possible you should comply with the requirements in full, as any fine will be reduced where the requirements have been partially satisfied.

You should ensure that you keep accurate records of the dates you made the checks. In most cases you will only need to do the check once for it to remain valid for the duration of employment. Employers will not be able to rely on the defence by copying documents which they know to be false, and may even face a penalty if any documents thought to be genuine, subsequently turn out to be false where the falsity is reasonably apparent and should have been notified by the employer.