Employing foreign workers now and in a post-Brexit world

Posted on: January 24th, 2018

Charlotte Allery outlines the key practical considerations for business and family employers taking on foreign workers in the UK and considers the unknown post-Brexit landscape.

The ease of travel and mobility means that the world has become a smaller place and businesses are seeing an increasing number of foreign applicants.

With skills shortages in most sectors and an ever-globalising world, many employers value these overseas workers with the knowledge and skills they can bring.

Whilst foreign workers can be a valuable addition to any business, employers need to bear in mind their legal obligations. Recent figures from the Home Office reveal that getting it wrong can be an expensive mistake, with £10.5m in penalties being issued to employers with illegal workers between 1 January and 31 March 2017.

Right to work in the UK

All employers, irrespective of size or sector, are required to prevent illegal working in the UK by confirming that all potential employees and workers are entitled to work in the UK. Employers that fail to adequately carry out a right to work check and employ an illegal worker can face tough sanctions, including a penalty of up to £20,000 per illegal worker. It is also a criminal offence to knowingly employ someone who does not have the right to work in the UK, which can result in a prison sentence of up to five years and an unlimited fine.

These checks involve following three steps for each worker:

  1. Obtaining specific original documents as specified by the Home Office, such as a British passport;
  2. Checking the validity of the documents in the presence of the worker; and
  3. Making and retaining a clear copy, together with the date of the check.

We recommend that offers of employment are made conditional on the individual’s eligibility to work in the UK being satisfied and, if you are in any doubt about an individual’s right to work in the UK, seek legal advice or contact the Home Office directly before employing the individual.

Employment rights

Foreign employees working for employers in the UK will be entitled to the same employment rights as UK citizens, such as the National Minimum Wage, paid annual leave and protection from discrimination.

However, employers should be mindful that some foreign workers may be restricted on the number of hours they can work, in what capacity and for what period. Information on restrictions can be ascertained from an applicant’s documentation, such as a visa. Further information should be sought from the Home Office if there is any uncertainty.

Avoiding discrimination claims

Whilst employers are, of course, entitled to recruit the best candidates for a job, race, nationality or ethnicity of a candidate should not be a factor in the recruitment process. Race is a protected characteristic under the Equality Act 2010, meaning that an individual will have a claim for discrimination if they have been treated less favourably on the basis of their race or nationality.

Employers should ensure that they are carrying out right to work checks consistently for all potential employees. Remember not to make any assumptions about a person’s immigration status on the basis of their race, nationality, ethnic origins, accent or the length of time they have been resident in the UK. A blanket policy of only carrying out right to work checks on individuals who appear to be ‘foreign’ is likely to lead to claims of discrimination.

What about the self-employed?

Whilst the legal obligation to carry out right to work checks will not apply to any self-employed contractors you engage, there are compelling commercial reasons for carrying out such checks. In the event that the individual’s self-employed status is challenged and they are found to instead be an employee or worker, you will have already complied with your legal obligations in respect of immigration checks.

Further to this, if an illegal worker is removed from your business, it may disrupt your operations and could cause widespread reputational damage. From a risk management perspective, the illegal status of your contractors or consultants may also result in an invalidation of any insurance you hold, such as public liability insurance.

What if I employ foreign nationals in my home?

Where you employ a nanny, carer or personal assistant to carry out work for you in your own home, you will need to comply with your legal obligations as an employer in the same way as a company would. As such, you will need to carry out right to work checks on these individuals, regardless of their nationality. You will also need to consider all other usual employer obligations, such as income tax and National Insurance deductions, paying the National Minimum Wage etc.

A post-Brexit world

In the immediate and mid-term aftermath of the UK’s vote to leave the EU and Theresa May’s triggering of Article 50, nothing has changed. Employers should continue to employ EU workers as they always have done, ensuring that right to work checks are carried out as currently stipulated by the Home Office. However, the long-term impact on the employment of EU nationals is unclear.

In June this year, Theresa May confirmed that EU nationals and their families who have spent five years in the UK will be able to apply for ‘settled’ status to obtain the same rights as UK citizens. However, the Government’s further immigration plans are anything but settled. In September this year, a Home Office document leaked to the press outlined for the first time how the Government intends to approach the politically charged issue of immigration.

Whilst the leaked document was in draft form and has not yet been signed off by Ministers, it suggests that free movement of labour will end upon exit from the EU in March 2019. Among its 82 pages, the document also suggests that low-skilled migrants will be offered residency for a maximum of two years, while those in high-skilled occupations will be granted permits to work for a longer period of three to five years. It also
proposes that the UK will adopt a more selective approach to immigration based on the UK’s economic and social needs.

The Government has said that it will be setting out its initial proposals for a new immigration system later in the autumn.

Whether these leaked ideas are the reality of the future, and what this ultimately means for employers relying on EU labour, unfortunately remains to be seen.

Charlotte Allery is a Solicitor in the Commercial & Employment Services team at Coffin Mew.