Employing Foreign Workers

Recent figures suggest that one in 40 jobs in the North East are vacant. With a large population of migrant workers, the majority of which are skilled, there are opportunities for such vacancies to be filled with obvious benefits to small businesses.

Many businesses may have concerns about immigration law and the impact of employment legislation when considering employing foreign workers. However, provided the right checks and policies are in place, such concerns are likely to be unfounded. Further, the refusal to employ on the basis of nationality could amount to race discrimination, unless the worker is not entitled to work in the UK.

British citizens, Swiss nationals or nationals of a country in the European Economic Area do not need permission to work in the UK, although nationals from the New Member States (Poland, Lithuania, Estonia, Lavia, Slovenia, Slovakia, Hungary and the Czech Republic) are required to apply to register with the Home Office under the Worker Registration Scheme within one month of starting work.

As such, businesses employing workers from one of the New Member States should ensure that the workers in question are aware of the requirements, that the correct process is followed, and should provide evidence of the worker’s employment to go with the application form. Where registration is refused, and the business will be informed of this by the Home Office, the employment should be terminated immediately. It would be worthwhile including a term in the worker’s contract to the effect that termination in such circumstances, or where the worker fails to register in the correct period, will be without notice.

t is also worth bearing in mind that it is a criminal offence to employ someone who is not entitled to work in the UK. However, there is a statutory defence if certain original documents have been checked and copies retained. The documents include passports, residence permits, Application Registration cards, work permits. The full list can be found on the Home Office’s website, under ‘Preventing Illegal Working’. Obviously, it will be necessary to check , so far as is possible, that the documents are genuine – that photographs and the stated date of birth fit with the individual. The document should also be in date.

What’s more, it is necessary to carry out these checks in respect of all employees, even those you believe to be British citizens. To do otherwise could lead to race discrimination claims and you may also be, inadvertently, employing an illegal worker.

Other issues to bear in mind if employing a foreign national is to ensure that appropriate policies are in place in respect of race discrimination and, also, religion and belief, and that these policies are both communicated to the workforce and adhered to. Further, practices should be reviewed to ensure that they are not disadvantaging workers from another country and appropriate steps should be taken to ensure that health and safety rules and procedures are understood by all.

Please contact Yvonne Atherton for further information.

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