Overseas staff: know the law

The recent publicity surrounding Attorney General Baroness Scotland and her 'illegal' employee should serve as a warning not only to high falutin' lawyers but also to the licensed trade.

More and more pubs are employing non-British staff for bar and catering work, and the likelihood is that customers will at some point be served by people from Eastern Europe, who 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 in February 2008.

Under the Act, you are liable for 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.

Fortunately, the Act also provides an exemption for some employers in certain circumstances. You are not liable if you 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, when it comes to employees with time-limited leave to be in the UK, employers will only remain exempt if they carry out repeat checks at least every 12 months. So you cannot be careless on this one.

Guidelines published by the UK Border Agency and viewable on the government's Business Link website (www.businesslink.gov.uk​) explain which documents should be checked when employing overseas staff.

Official checks will be carried out from time to time within the licensed and leisure industries. To be entirely safe, licensees should ask all 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 officially authorised to work.

Just to remind you, if you knowingly employ or have employed an illegal migrant worker after 29 February 2008 and do not have a reasonable excuse for doing so, 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, you could be prosecuted and receive an unlimited fine and/or a maximum two-year prison sentence.

Penalties​

There already exists a range of penalties and obligations linked to the employment of foreign staff, 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 person after one month, 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 the application has been refused.

For example, you can be fined up to £5,000 per illegal worker for employing non-exempt Bulgarians or Romanians who are not permitted to undertake the employment in question from 1 January 2007.

This is a major responsibility for licensees, which they can no longer shirk. For many years, the tendency in the trade has been to treat employment laws rather casually, particularly in terms of itinerant bar staff, who come and go regularly.

But, as the noble baroness has found, the restrictions on our responsibilities have tightened up.

If you don't comply, they may come back to haunt you.