The Immigration Bill, which is due to gain Royal Assent in 2016, will increase the government’s ability to bring charges against those who employ illegal workers. With current legislation described as something of a ‘toothless tiger’, the bill is designed to reduce the evidential requirement for a successful conviction, while also increasing the penalties awarded to those found to be non-compliant. For HR directors, now is the opportune time to review recruitment processes and ensure due-diligence procedures are in place to avoid any undue liability.
At present, it is extremely difficult to bring criminal sanctions against an individual who has approved the employment of ineligible employees. The law states that prosecutors must prove that the individual in question ‘knowingly’ did so; evidence suggesting this, in the absence of a whistle-blower or written correspondence is often subjective and circumstantial, making the legislation difficult to enforce.
However, the Immigration Bill will amend the law to require proof that individuals had ‘reasonable cause to believe’ a worker was ineligible for employment. No longer will turning a blind eye constitute an exemption from legal blame; simply failing to provide complete right to work checks, coupled with circumstantial factors, such as the employee being a non-UK or EU citizen, will be enough to bring a case forward. There is also the belief in some legal circles that this terminology will be softened even further before the final draft of the bill is approved from ‘reasonable cause to believe’ to ‘reasonable cause to suspect’, which would increase the likelihood of conviction still further.
This change is likely to redress the balance between civil and criminal cases currently pursued in the drive to reduce illegal working. At the moment, the number of civil charges brought against businesses greatly outweighs criminal charges brought against individuals – these cases are much more easily won and come with monetary benefits as non-compliant businesses are subject to heavy fines. Moving forwards, it seems probable that more individuals will be charged as prosecution becomes more achievable, with these individuals being held up as a deterrent for other business leaders who are considering circumventing regulations.
Crucially for HR professionals, the person responsible for signing off the recruitment process, known as the ‘authorising officer’, is liable for individual prosecution. This individual is most often a HR director or senior member of the HR team. Problems can arise when responsibility for selecting and interviewing candidates is delegated to department heads or managers, meaning that the HR director is a step removed from the process.
Efforts must be made to ensure that all activity is as transparent as possible and that thorough administration procedures are implemented as standard, to eliminate the risk of ineligible workers erroneously being granted employment. Simple measures such as the filing of complete right to work checks and visa documentation are essential.
Additionally the maximum civil penalty for employers has been doubled from £10,000 to £20,000 per illegal employee, and the maximum custodial sentence for the ‘authorising officer’ is to be increased from two to five years. In order to ensure that businesses and individuals are compliant with regulations, action must be taken now. Regular internal audits and the implementation of stringent operational best-practice should remain a top priority for HR directors and business leaders during 2016.
David Roy is a partner at Shakespeare Martineau