UK: Short Cut To Danger!

The shortage of skilled labour is potentially the greatest challenge facing the UK construction industry today. The Construction Industry Training Board estimates that the industry needs to recruit at least 76,000 people each year, with a wide range of skills, in order to keep up with growth in areas such as the house building sector which makes up more than one-third of the UK construction market.

Unfortunately the dearth in home-grown apprenticeships and the expansion of the EU means employers are increasingly left with little choice but to employ migrant workers. According to research conducted by the Construction Confederation last year there could be as much as 100,000 migrant workers already employed on building sites throughout the UK and Home Office figures unveiled earlier this year showed that 130,000 individuals from eastern Europe have registered to work in the UK since their states joined the EU last May.

Section 8 of the Asylum and Immigration Act 1996 requires all employers in the UK to make basic document checks on every person they intend to employ. However the frequent demand for immediate resources within the construction industry means that it can sometimes be tempting to overlook the requirement to check the immigration status of individuals before employing them.

Having to carry out immigration checks on every individual worker can appear to be a cumbersome, time-consuming and unattractive task. However, employers should be extremely wary of succumbing to such pressures, and not carrying out the required immigration checks, because it is a criminal offence to employ someone, aged 16 or over, who has no right to work in UK.

In May last year the Government introduced changes to the types of documents which employers need to check for three key reasons :

• to make it harder for people who do not have permission to work in the UK to obtain work by using forged or false documents;
• to make it easier for employers to ensure that they employ people who are legally permitted to work in the UK; and
• to strengthen Government controls on tackling illegal working by making it easier for the UK Immigration Service to take action against employers who deliberately use illegal labour.

Failure to carry out the required immigration checks may result in the employer being found guilty of a criminal offence under the Asylum and Immigration Act. This is punishable by a fine of up to £5,000 for each person whom the employer is found to have employed illegally. Additionally, directors and officers could be found personally liable for the offence and fined accordingly.

To defend yourself against such a charge you must be able to show that before the employee commenced work, you checked and copied sufficient numbers of original documents in order to satisfy the requirements of the new immigration legislation introduced last year. The purpose of the document checks is to establish whether or not the individual is an EEA national and/or has the right to reside and work in the UK. Employers also need to satisfy themselves that the employee is the rightful holder of the documents. You should consider checking expiry dates and look for consistency between different documents that are presented. The combinations of documents which satisfy the legislation can be found on the Home Office's Working in the UK website (www.workingintheuk.gov.uk).

Employers should take care when carrying out immigration checks to ensure that they do not discriminate on racial grounds. If you are found to have done this, you could face discrimination claims and be ordered to pay unlimited damages. The overriding principle which emerges is that businesses should refrain from taking short cuts and ensure that they treat all job candidates identically regardless of ethnic origin. A code of practice for employers on the avoidance of racial discrimination while preventing illegal working is available on the Home Office's Immigration & Nationality Directorate website (www.ind.homeoffice.gov.uk).

Migrants who previously relied on the Inland Revenue's Construction Industry Scheme Four card (CIS4) will no longer be able to do so. Previously, holders of a CIS4 card were allowed to work in the UK for up to a year and pay tax. No immigration or nationality status checks were carried out. However new rules introduced last year mean that it is no longer lawful to rely upon a card or certificate issued by the Inland Revenue under CIS as evidence of ability to work in UK.

Historically the number of prosecutions by the Immigration and Nationality Directorate has been at a low level. The 'word on the street' is that immigration enforcement officers are carrying out spot checks in organisations – and charging the employer if irregularities are discovered – far more frequently now than they have done in the past. The Government's plans to forge ahead with identity cards should add to its arsenal of weapons in the war against illegal working. But will this leave the industry short-changed once again?