Migrant workers: Rubber-stamping your staff

The use of migrant workers by retailers has increased massively over recent years and many companies applaud the hard working attitude they bring with them.

But for HR departments the document checking that needs to be completed on such workers brings an increased workload and a need for sensitivity. “You are at risk of being accused of discrimination when you are insisting that current documentation be produced,” says the HR director of one high street retailer. And with discrimination claims comes the risk of a tribunal case and all the cost and disruption that brings to the business. “It’s a minefield and places a huge onus on the HR department,” says the HR director.

New Look recruitment manager Lee Evans agrees. “It’s a massive responsibility and is quite difficult to administer the document checks because we have so many people in 600-plus stores,” he says. At New Look copies of documents are added to employees’ files and stored at head office.

At John Lewis the retailer sees original documents before an offer is made, according to a spokeswoman. But some retailers will ask staff to bring their documentation for checking on their first day before they start work.

Audrey Elliott, partner at law firm Eversheds, says this is sailing a little close to the wind and advises either checking everyone at interview stage or at the very least the day before they start work.

The risks mean the subject can’t be ignored. The law on the prevention of illegal migrant working is set out in the Immigration, Asylum and Nationality Act 2006. It states it is a criminal offence to employ a person aged 16 or over who is subject to immigration control and has no permission to work in the UK, or who works for a company in breach of their conditions to stay here.

The act requires all retailers in the UK to undertake basic document checks (and take copies of original documents) for every person they intend to employ. Failure to comply could lead to a fine of up to £10,000. For those retailers knowingly employing a migrant who is not permitted to work, a resulting conviction could lead to up to two years’ imprisonment.

For migrant workers with limited leave to be in the UK, the document checks must be repeated at least once every 12 months until they produce a document that shows they can remain permanently in the UK. 

Retailers have to both check and copy all relevant documents for all migrant employees before the employee starts, according to Elliott. If the employee is from any of the EU accession states – ie, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia or Slovenia – they are classed as A8 workers and the retailer must also check they are registered with the Worker Registration Scheme. If they still need to register that must be done with the UK Border Agency no later than a month after starting work.

“It is the employee’s responsibility to apply to register, but the retailer will need to provide employees with evidence of their employment – a contract or letter – in order for them to apply. The retailer should take a copy of the completed application form before the worker sends this to the UK Border Agency and keep this until the retailer receives notification from the UK Border Agency that the worker has been registered,” says Elliott.

For potential employees from Romania and Bulgaria, which are the newest members of the EU and European Economic Area (EEA) – called A2 workers – different rules apply: they will not require a visa but may need authorisation from the Home Office and the retailer may also need to apply for a work permit – all of which must be authorised, seen and copied by the retailer before the employee starts work in order to establish a defence against prosecution. “Retailers will have to check that the worker has valid Accession Worker Authorisation documentation, or a valid exemption registration certificate,” explains Elliott.

Once a retailer has seen and carefully checked the original documents they must save photocopies or scans of the documents and store them for the duration of that member of staff’s employment and for two years after they have left, according to Elliott. If the annual check on documents is required then the retailer needs to diarise that.

Elliott admits it is a minefield. “The key to ensuring compliance is for the retailer to have clear and adequate policies in place to ensure that appropriate documents are checked prior to commencement of employment and that, where necessary, the 12-monthly checks are carried out.

“These processes should be devised to ensure that they are compliant not only with the legislation, but work practically with the retailers’ business; that those responsible for recruitment are properly trained on these processes and that appropriate safety mechanisms are put in place to ensure compliance. These could be internal audits on an annual basis, or using HR software to prevent employees going onto payroll, or remaining on payroll after 12 months, unless an appropriate manager has certified that documentation as described above has been checked,” says Elliott.

But as the HR director warned, there are risks. Retailers are also obliged to ensure that employees, and prospective employees, are not discriminated against on the grounds of race. So it is important that recruitment and ongoing document checking procedures apply to all employees and prospective employees irrespective of race or ethnic background.