Prevention of Illegal Working

The highlights are:

Employers who hire illegal workers will face a much stricter penalty scheme, to be followed by the replacement of the current work permit scheme with a new ‘points-based’ system

The Immigration, Asylum and Nationality Act 2006 and associated regulations make it unlawful to employ an adult subject to immigration control if they do not have valid leave to enter or remain in the UK and don’t have permission to do the work offered

The main provisions are:

With effect from 29 February 2008 there will be a new system of civil penalties for employers that engage illegal immigrant workers with a maximum penalty of up to £10,000 for each illegal worker (previously £5,000). Such an employer in breach may be served with a civil penalty notice, although it may be excused from paying any penalty if it can demonstrate compliance with the ‘statutory excuse’ (see below)

An employer will be excused from paying a penalty if it has complied with the relevant provisions set out in the legislation concerning the production by the prospective employee of particular documents and compliance by the employer with various other requirements (some of which are new), including taking all reasonable steps to check the validity of the document(s) produced; and retaining copy documents securely for not less than 2 years after the employment has ended. (Note - such excuse will not apply to an employer who knew that such employment was illegal.)

A continuing ‘investigative’ responsibility for employers to check the ongoing entitlement for certain migrant workers to work in the UK at least once every 12 months. It will therefore be important for employers to have a system of diarising and tracking employees' immigration status from the outset

A new criminal offence of ‘knowingly’ using illegal migrant labour, carrying a maximum 2-year prison sentence and/or an unlimited fine. An employer will commit an offence if found to be employing a person knowing that he is subject to immigration control, unless that person has a current and valid permission to be in the UK and has valid permission to do the type of work offered

There is a good Home Office Publication entitled "Preventing Illegal Working - Summary Guidance for Employers - (click here for link).

CARERS OF ELDERLY AND DISABLED TO GET EXTENDED RIGHTS

Brief details are:

It is perhaps too soon to call this case a "landmark" decision but it comes pretty close. Attridge Law v Coleman concerned the claim of a single mother of a 5-year-old disabled son who claimed that the law firm for whom she worked treated her less favourably than other staff because of her son's disability. She asked for flexible working so she could care for him but this was refused. Her employer allegedly accused her of using his condition to "get out of work"'. She resigned and claimed unfair constructive dismissal and disability discrimination.

Eventually the case was referred to the European Court and the Advocate General decided unequivocally that the Equal Treatment Directive protects people from direct discrimination and harassment by association. If his opinion is followed by the ECJ (who will determine the issue later this year) carers of disabled people will be protected from being treated less favourably or harassed because of their association with a disabled person. Employers will need to be far more careful when handling requests to work flexibly from carers of elderly or disabled people and will need to be satisfied that they have not treated the employee with disabled/elderly caring responsibilities less favourably than another person whose circumstances are not materially different (e.g. a person with childcare responsibilities asking to work flexibly). If the employer has not been consistent, the employee will be able to bring a claim that they have been directly discriminated against (i.e. treated less favourably on the grounds of their association with a disabled or elderly person).

If you require any further information, please do contact me by visiting our website.

Colleen Guy