Employing foreign students: don't let them work too long

Employing foreign students: don't let them work too long

Author: Sarah Booth

Retail giant Tesco has reportedly fallen foul of immigration laws by allowing foreign students to work too many hours at one of its warehouses. This is a timely reminder for all employers of the potential cost of failing to follow the extensive rules.

A raid by UK Border Agency staff discovered that a number of employees were working longer hours than their visa allowed. It is estimated Tesco could now face fines of up to £200,000 as a result.

Media reports suggest the students were predominantly of Bangladeshi and Indian origin and had been working up to three-and-a-half times longer than permitted.

The law: the consequences of getting it wrong

Under the Immigration, Nationality and Asylum Act 2006, it is an offence for an employer to employ an individual who does not have the right to work in the UK.

Employers could be subject to a penalty of up to £10,000 per illegal worker if they are found to be employing an illegal worker, or employing a migrant worker in breach of restrictions in their visa.

In addition to the civil penalties, individuals who knowingly employ an illegal worker could be liable on conviction to up to two years in prison. Individuals involved in the recruitment process (including managers and HR) should ensure that they are satisfied that an individual has the right to work in the UK, or they could be personally caught by this.

In addition, if an employer is also a sponsor under the UK Border Agency's points based system, it could be issued with a sponsor action plan, its sponsor licence downgraded or, at worse, have the sponsor licence revoked altogether. This will severely limit an employer's ability to employ non-EEA nationals and could cause significant commercial issues for multi-national organisations in particular.

The defence

If an employer is found to be employing illegal workers (or employing a worker in breach of the restrictions on working set out in their visa), it will have a statutory defence if it has conducted the appropriate checks before employing the individual.

Employers should check and keep copies of original documents before an individual commences work.

This is not the end of the matter however. If an employee has only temporary leave to remain in the UK, it is the employer's responsibility to repeat checks every 12 months.

If a person has a restriction in their visa on the type of work they can do, or the amount of hours they can work, then the individual should not be employed in breach of these conditions. Student workers in particular, are subject to restrictions on the number of hours that they can work, with a limit of 20 hours per week during term time (although they are permitted to undertake full time work during vacations or where on a work placement as part of their course).

Employers should therefore have the following processes and procedures in place before employing a migrant worker:

  • Employers should ensure that they are familiar with UK Border Agency's acceptable documents (called "List A" and "List B") which demonstrate an individual's right to work in the UK and that it has copies of these documents on file for each employee.
  • Employers should ensure that there are processes in place for monitoring the expiry dates of the visas of temporary workers. As good practice, the expiry dates should be diarised in both the managers and HR's diaries, as well as in the migrant worker's diary. In addition, a reminder, two months before the expiry date should be diarised to ensure that there is sufficient time to take steps to extend permission to remain in the UK, if required.
  • Employers should ensure that any restrictions on the types of work an individual can do are adhered to. Managers should be made aware of any restrictions on duties and this should be clearly noted on the individual's personnel file.
  • Employers should also ensure that any restrictions on the amount of hours an individual can work are adhered to. Managers should be made aware of any restriction on the amount of hours that an individual can work, and where possible, restrictions should be entered on any rota software to prevent an individual exceeding their permitted hours. Managers should also be cautious when offering overtime.

When it comes to compliance, every little helps! By putting appropriate procedures in place prior to employing a migrant worker, employers can make sure that they do not fall foul of the law.