Hard(y) Law Talk: Illegal workers

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Illegality at work! It sounds most odd … but it does happen. The day when the Department of Work and Pensions fraud officers arrive at dawn to check your employees’ status or the Criminal records Bureau checks return to haunt you, the cry of ‘oops! We did not have time to check that prevails but does not apply as a defence only mitigation.

Employing an individual without a right to work in the UK is a criminal offence on the part of the employer. Consequently, the employer should keep a copy of such a document, which may include a P45 or national insurance document. The rules governing what documents can be produced was tightened up on 1 May 2004.

In the past, employers often required that individuals exercise their subject access rights to any criminal record. This is now outlawed under the Data Protection Act 1998 and criminal record information is amongst the list of sensitive data requiring individual consent.

The Police Act 1997 provides access to a system of criminal certificates and although it can be argued that accessing criminal records may contravene the Human Rights Act, there is a section allowing such access on the grounds of public interest.

The new rules on criminal records came into force in 2001. These new rules allow employers to request that a potential employee provides one of three types of record outlining conviction status. The first, the basic record, can only be accessed by the prospective employee subject to data protection rules on enforced subject access.

The other two can be accessed by registered employers and are primarily for employment with vulnerable adults and children. However, it is not clear how this fits with data protection legislation or the forthcoming human rights legislation.

Legality at work
To simplify, employers should have the relevant administrative processes in place to handle employee records having complied with the appropriate checks. Illegal contracts are fraught with difficulties, least not the fact that they do not stand up in a court of law nor an employment tribunal.

To that end, HR practitioners need to ensure that all the relevant checks are complete and filed away, so as to minimise any potential embarrassing visits from the various enforcement agencies.

Dr Stephen Hardy is Senior Lecturer in Law at the University of Manchester and a Barrister specialising in employment and EU labour law.

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