Tricky territory
It’s all too easy to lose grip of immigration and employment legislation when recruiting staff from outside the UK. Anat Arkin provides the facts you need to catch potential problems in time
Date:
03 June 2010
Source:
Guide to recruitment consultancies
Page:
12
Hiring overseas workers is a legal minefield – as attorney general Patricia Scotland discovered last year when she was fined £5,000 for employing a housekeeper whose visa had run out. Under new rules covering workers from outside the European Economic Area (EEA), even employers who do not intend to break the law, such as Baroness Scotland, can end up paying heavy penalties for employing illegal workers.
But this risk does not seem to be deterring employers from hiring non-British workers. According to the latest CIPD Labour Market Outlook survey, around one in five employers (19 per cent) recruited migrant workers in the three months to December 2009. The survey of more than 700 employers, carried out by the CIPD and KPMG, also found that public-sector employers are more likely to hire foreign workers than their private-sector counterparts (24 per cent compared with 15 per cent).
“It’s something of a paradox, given that public-sector recruitment is tightening rapidly owing to political pressure to cut spending,” says CIPD public policy adviser Gerwyn Davies. “But professionals such as nurses, doctors and social workers are still sought after and, unfortunately, the pool of labour from the UK is not sufficient to meet employers’ needs, so many are having to go abroad to find suitably qualified and experienced staff.”
Where such staff are non-EEA residents, employers must recruit them through the points-based system introduced two years ago. This is built around a five-tier framework: Tier 1 covers highly skilled individuals and entrepreneurs; Tier 2, skilled workers with job offers; Tier 3 – currently suspended – unskilled workers; Tier 4, students; and Tier 5, temporary workers and those on the “youth mobility scheme”.
Employers wanting to employ skilled workers under Tier 2 must first apply to the UK Border Agency (UKBA) for a licence to issue certificates of sponsorship – a process that involves demonstrating that they have good HR monitoring and record‑keeping systems. Employers with all the right systems in place are given an A rating, while those deemed a risk to immigration control receive a B rating and are required to follow an action plan to help them improve.
Once licensed, employers must jump through a further series of hoops before they can hire non-EEA workers. In each case, both the job and the candidate must score a minimum number of points for English language skills, maintenance funds and various “attributes”.
The hiring organisation must also show it has tried but failed to find a resident worker, having advertising the job through the Jobcentre Plus network and a recruitment channel specified in the UKBA code of conduct. The timescale for conducting this “resident labour market test” was doubled last December to four weeks.
There is little evidence, however, that this extension has led to more jobs being filled by UK-based workers, says Steve Huxham, chairman of the Recruitment Society. What it has done, he argues, is placed an additional burden on employers, who must not only spend money on advertising “to get a possibly negative answer”, but also have to be able to justify their decision to hire a non-resident worker if challenged. “So you have to show your audit trail to prove what you’ve done, and that involves money and time, both of which are possibly in short supply,” he says.
It’s only after clearing these hurdles that the employer can issue candidates with the sponsorship certificates that allow them to apply for a new visa or extension of their stay. Once they are in post, the employer must ensure they comply with their immigration conditions by keeping records on them and retaining copies of their passports or ID documents.
In addition, any changes in the migrant’s or employer’s circumstances, such as a takeover by another company, must be reported. If the UKBA finds that organisations are in breach of these sponsorship duties it can withdraw their licence, downgrade their rating or impose a fine of up to £10,000 for each illegal worker. Employers who are fined are also named and shamed on the UKBA website.
Employers who have unintentionally employed illegal workers can avoid these penalties by showing that they have checked, copied and retained copies of documents appearing to show that the workers did have the right to work in the UK – which is where Baroness Scotland slipped up. However, this statutory excuse only stands for 12 months, after which documents should be checked again – something many employers don’t realise, says Tracy Yates, a partner specialising in immigration law at Eversheds.
But she stresses that penalties are imposed for employing people who don’t have the right to work in the UK, rather than for failing to check their documents. “Checking their documents should establish whether or not they have this right and copying the documents then confirms that at the time you employed them they did have the right to work here,” she explains. “If you’ve checked their documents and they didn’t have the right to work, you wouldn’t want to employ them and you wouldn’t have an excuse if you did employ them.” Knowingly employing an illegal worker is a criminal offence punishable with an unlimited fine or up to two years’ imprisonment. And employers cannot escape their responsibilities under either civil or criminal law by outsourcing document checks to a recruitment consultancy or other intermediary. “The employer would still be liable if it turns out they are employing someone who shouldn’t be working in the UK,” says Yates.
A reputable recruitment agency can, however, mitigate the hiring organisation’s exposure to risk, according to Naveed Ahmed, managing director of Goldteam, a specialist recruiter in the fast-moving consumer goods, hospitality and healthcare sectors. Ahmed advises employers to audit their recruitment agency regularly and ensure it follows UKBA guidelines relating to document checks.
“Choose an agency that has a compliance officer trained in spotting fake ID and also an established relationship with the immigration office so that queries can be checked quickly by phone. Then ensure they monitor the life of visas, flagging up those that are expiring or due to expire,” he says.
When carrying out these checks, the recruitment agency or employer should also follow the UKBA code of practice on avoiding unlawful race discrimination. This advises employers to check the documents of all prospective employees – not only those who were born abroad or are members of ethnic minorities. “So treat everybody in the same way and don’t make assumptions based on somebody’s appearance or name about whether they are or are not entitled to work in the UK,” says Matthew Davies, head of the business immigration practice at Fox Williams.
He also warns employers of the dangers of moving straight to dismissal where annual document checks indicate that an existing employee does not have the right to work in the UK. “There have been cases where steps could have been taken to regularise a worker’s immigration status without a need to terminate their employment,” he says.
Urging employers to take a measured approach in such situations, Davies adds: “If you do conclude that you need to dismiss someone, be extremely careful to follow all the proper procedures. Otherwise you are setting yourself up for a potential claim.”
Case study: Bupa
Bupa tries to fill all vacancies in its care homes with UK-based staff. “The problem is that nursing skills in particular are like gold dust and, given the present economic climate, not many people want to leave their current employers,” says Mandy Kirk‑Smith, HR service centre manager for Bupa Care Services.
The shortage of suitably qualified local residents means that of the 27,000 people currently working in Bupa’s 304 UK care homes, over a quarter (around 26 per cent), were recruited from overseas.
These include non-EEA residents covered by the points-based immigration scheme. Kirk-Smith says this scheme is straightforward to deal with now that her organisation’s working practices have been adjusted to take account of the new rules.
The online method of issuing certificates of sponsorship is also proving much faster than the largely paper-based work permit system it replaced, she says.
As well as reviewing migrant workers’ identification papers and other documents, Kirk-Smith and her team spend much of their time coaching managers on the immigration process and answering employment and immigration-related queries. Regular audits are also conducted in the care homes to make sure that employees’ papers are up to date.
These measures help this arm of Bupa to stay within the law. But the speed of change in this area remains a challenge, especially because the UK Border Agency often announces changes at the very last minute. “From an HR perspective you may like to plan ahead, but it’s not that easy when they tell you about a change on the day it happens,” says Kirk-Smith.
With further change on the cards with a new government, HR teams in organisations that rely on migrant workers will need to continue to keep a close watch on developments in immigration law.
Checklist
- Check that employees have the right to work in the UK by inspecting, copying and retaining copies of their original documents.
- Avoid unlawful discrimination when carrying out these checks.
- Re-check documents every 12 months.
- Make sure your systems are able to track employees’ immigration status and maintain their contact details.
- Seek advice before dismissing employees on the grounds of their immigration status.
- Keep a close watch on developments in this fast-changing area of the law.