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How to: Employ foreign workers

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Neil Gouldson, head of employment law at national law firm Rowe Cohen, reminds employers to consider the appropriate regulations when recruiting overseas.


A survey recently published by the Chartered Institute of Personnel and Development (CIPD) found that more than one in three firms had to recruit from abroad last year because they could not find enough home-grown talent willing to do the work.

Household names forced to look further afield include Tesco and Firstgroup, the country’s biggest bus company which has revealed plans to take on 1,000 East European drivers.

However, complex immigration laws, language barriers and ever increasing employment law legislation add to the confusing array of issues faced by many bosses charged with looking overseas to recruit. It’s crucial that they understand Home Office legislation surrounding work permits and business visas.

Staff mobility is definitely one of the biggest issues faced by multi-national businesses operating in a global economy.

The expansion of the EU does not necessarily mean that it’s a simple process to import employees from other countries – at any level. The global economy means that senior staff or specialist positions are regularly transferred across borders within organisations.

Successful businesses want the best people – wherever they are in the world.

Proposals
Earlier this year, the government launched its five year plan for the UK Immigration System. Although it is not yet clear when these proposals will be put in place, there are clear implications for businesses that employ foreign workers.

A new points-based system will merge with the current sectors-based scheme for work permits (for low skilled workers), the skilled work permit scheme and the Highly Skilled Migrant Programme will merge to form a new system with four levels:

  • Highly skilled

  • Skilled

  • Low skilled

  • Students and specialists

There could also be a reduction in the length of short stay visits by visitors from six months to three months.

Travellers to the UK from other countries could only be able to work for 12 of the 24 months they spend in the country meaning further checks being carried out by businesses.

Criteria
Most overseas workers require a work permit to work in the UK in order to protect the resident labour market and control the immigration of unskilled workers. New recruits, board level relocations and internal company transfers all need work permits.

Industries with a shortage of labour force such as the hospitality and food processing sectors have been targeted by the Government to facilitate a process of managed migration employers should be alert to any schemes in their industry and seek advice.

UK employers have certain crucial responsibilities with regards to getting the work permit issued in the first place. The application must be made by a UK-based employer and the company should have an active presence in this country. The pay and conditions offered to the new employee should be the same as that of existing resident workers.

The contract of employment offered to the employee must comply with UK employment law – no matter what the law says in the worker’s country of origin. Bosses should also check that a potential employee has the necessary skills and experience to be able to be granted a work permit.

There are four key indicators to use:

  • a degree

  • a relevant HND (Higher National Diploma)

  • any HND and a year of relevant work experience
    three years experience of the specialist job

Transfers and top level jobs
Clearly, not all business immigration involves people actively seeking opportunities in the UK. Plenty of top business executives hop from country to country performing specialist roles, often within the same company.

For this reason, the main work permit scheme is spilt into two levels. The first level covers internal company transfers, board level position and sponsored academic researchers. Occupations where there is a shortage of people for the task also come under this level. Teachers, nurses and certain types of engineering jobs are good examples.

The second level of the scheme applies where a company, after advertising in the UK and other EU countries cannot fill the post with a resident worker – and has to look abroad with the approval of the Home Office.

The penalties
The government’s crackdown on illegal workers, which is part of the Home Office five-year strategy for asylum and immigration, should be noted by all employers.

It is estimated that thousands of illegal immigrants are living in the UK, many of whom work in factories, service industries and construction. It’s hard to deny that the issue of inadvertently employing illegal workers remains an area of concern for business leaders.

Businesses need to be aware that the current UK Asylum and Immigration legislation makes it a criminal offence to employ someone aged 16 or over who does not have the legal right to work in the UK or the right to do the type of work offered to them.

There is already a potential £5000 fine that can be handed out to employers for each illegal worker within their workforce and this figure looks set to rise.

It’s vital to remember that bosses responsible for recruitment within an organisation can be held personally liable in cases where the employment of illegal workers was committed with their consent, knowledge or could be attributed to their negligence.

The authorities have made a great deal of noise about targeting businesses on a more regular basis:

What defence?
Employers may rely on a statutory defence if an illegal worker is uncovered in the workforce as long as they didn’t know the person wasn’t entitled to be employed.

Before hiring someone:

  • ask all potential employees to provide original documentation evidencing their entitlement to work in the UK

  • see the original document, such as a UK or European Economic Area passport, a national ID card or a UK residence permit.

If these documents don’t exist – see two verifying items e.g. a National Insurance Number and name AND a full birth certificate issued in the UK or an Immigration Status Document issued by the Home Office indicating that the person named can stay indefinitely in the UK.

Businesses can help themselves by double checking the authenticity and validity of any paperwork handed to them, that the potential employee is the rightful holder of them and that the documents permit that person to do the type of work available. Proof of these verification checks is essential if an employer is to successfully rely upon the statutory defence.

Employers should retain a copy of the relevant documents, and keep the copies throughout the employee’s period of employment and for a period of at least three years after the person has ceased working for the employer. All this has to be done with careful consideration of the Data Protection Act.

Good bosses should also be well versed in the consequences of making rash judgments or assumptions based on appearances or a person’s background when carrying out checks.

Discrimination on grounds of race, colour, ethnic or national origin or nationality is not tolerated and best practice would be to treat all job applicants in the same way at each stage of the recruitment process without exception.

Neil Gouldson can be contacted on T: 0161 830 4600.


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