Coulson: Check status of migrant workers to avoid penalties
It has not escaped the notice of customers that more and more pubs are employing a range of nationalities on bar and catering work.
At one stage pubs seemed to be staffed entirely by Australians and New Zealanders, working to fund their long-stay holiday in Blighty. Not any more. The likelihood is that they will be served by someone from an Eastern European country, migrants from which are increasingly finding work in the hospitality industry.
But licensees need to be keenly aware of the legislation, and in particular sections 15 to 26 of the Immigration, Asylum and Nationality Act 2006, which came into force on 29 February this year.
Under that Act, you are now liable to pay a civil financial penalty if
you employ a person aged 16 or over who is subject to immigration control and either has no permission to work in the UK, or who works for you in breach of their conditions of stay here.
Fortunately, the Act also provides an exemption for some employers in given circumstances. They can have an excuse if they have in good faith carried out a number of specified checks on the original documents of prospective employees and no illegality or problem has shown up.
However, employers will only have this excuse for employees with time-limited leave to be in the UK if they carry out repeat checks at least once every 12 months. So you cannot be careless on this one.
The documents that should be checked for staff employed from this March are described in guidance booklets published by the UK Border Agency and on the Business Link website (www.businesslink.gov.uk).
It is very likely that checks will be carried out from time to time within the licensed and leisure industries, which may well be targeted for this sort of issue. So to be entirely safe, licensees should ask all European Economic Area (EEA) nationals to confirm their nationality by producing a specified document described in the literature and on the websites.
Additionally, nationals of Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia may need to be registered or authorised to work.
Some of the penalties have already been covered in the MA, but just to remind you, if you employ or have employed an illegal migrant worker from 29 February 2008 and do not have a reasonable excuse, you could be liable for a civil penalty of up to £10,000 per illegal worker.
In certain serious cases, probably involving a number of workers, if you knowingly employ or have knowingly employed an illegal migrant worker from 29 February 2008 you could be prosecuted and receive an unlimited fine and/or a maximum two-year prison sentence.
There are now a range of penalties and obligations, depending on the origins of the worker concerned and their actual status, as discovered by the authorities. For example, under the Accession (Immigration and Worker Registration) Regulations 2004, an employer can be fined a maximum of £5,000 per illegal worker if they continue to employ an unregistered non-exempt worker after one month and have not retained a copy of their Home Office application form and do not receive a certificate of registration.
An employer can also be fined for continuing to employ such a worker if they have been notified by the Home Office that their application has been refused.
Specifically, you can be fined up to £5,000 per illegal worker for employing a non-exempt Bulgarian or Romanian who does not have permission to undertake the employment in question from 1 January 2007.
So there is a major responsibility for licensees now in this area, which they cannot shirk. There has been a tendency for many years to treat employment laws rather casually in the trade, certainly in terms of itinerant bar staff, who may come and go fairly regularly. But the new laws tighten up on responsibilities and may come back to haunt you if you do not comply.
