Employment Law Update (October 2009)

Attorney General fined for hiring illegal worker

The Attorney General, Baroness Scotland, has been ordered to pay a civil penalty of £5,000 for employing a person who was not legally able to work in the UK as her housekeeper.  The case highlights the harsh financial penalties facing employers who are unable to show they have made proper checks on employees.  Perhaps equally surprisingly, it also highlights that inadvertently employing illegal workers is not a criminal offence.

What happened in this case?

The exact facts are not known, but it seems that Baroness Scotland, who as Attorney General is one of the Government's senior law officers, hired a woman called Tongan Loloahi Tapui to be her housekeeper. Although Baroness Scotland says she checked Ms Tapui's documents, she did not keep copies. Ms Tapui turned out to have no right to work in the United Kingdom.

How does the law work?

The law was changed in February 2008. At that time, employing illegal workers was effectively decriminalised in most cases – so that it is no longer a criminal offence.  Instead, a system of "civil penalties" was set up.

What's a "civil penalty"?

A "civil penalty" works rather like a parking fine. This means that receiving one does not give you a criminal record – but the downside is that such penalties are imposed without any court proceedings. In a reversal of the rules that apply in criminal proceedings, it often means that you can be "guilty until proven innocent".

Employers who inadvertently employ people who do not have the right to work in the UK can only avoid a civil penalty if they can show they have a "statutory excuse" – which means checking and keeping copies of certain documents. If they cannot prove they have done this, employers will automatically face a "civil penalty" of up to £10,000 per illegal worker.

For a one-off first offence, the usual maximum penalty would be £7,500, reduced by a further £2,500 for co-operation with the authorities. Further offences are dealt with more severely and may result in a £10,000 penalty.

Are there any criminal sanctions?

Yes. It is a serious criminal offence to "knowingly" employ illegal workers.

Further information is available on our Employment Essentials pages. LINK TO EMPLOYMENT ESSENTIALS – RECRUITMENT AND IMMIGRATION

Points to remember

• Just because a person is in the UK doesn't mean he or she can legally work here. The person might be an illegal immigrant or might only have student or some other restricted status;
• Failing to make checks and keep copies of documents means you will be unable to avoid a civil penalty of up to £10,000 per illegal worker;
• A National Insurance Number is NOT sufficient evidence of a person's right to work on its own;
• To avoid allegations of unlawful discrimination, all new employees should be checked in the same way.