Agencies: your obligations regarding immigrant workers
The Department for Education has embarked upon a campaign to remind agencies providing staff to schools of their obligations to check the right to work in the UK under the Immigration, Asylum and Nationality Act 2006 (IANA).
So what are the rules?
Under the IANA it is illegal to employ someone who does not have the right to work in the UK. All employers have a duty to check the documents of potential employees to ensure they have the right to work in the UK before they are employed.
Penalties for breach of the Immigration, Asylum and Nationality Act 2006 are currently up to £10,000 for each illegal worker or up to 2 years in prison.To add to its immigration policy credentials, David Cameron has recently expressed the desire to double the amount of this fine.
However, it is worth noting that these rules do not apply to workers engaged on contracts for services, since they only apply to employers in relation to employees. So, under this Act, there appears to be no requirement for checking the right to work for teaching staff who are not employed in the strict sense of having an express or implied contract of employment.
So are there other rules? The Conduct of Employment Agencies and Employment Businesses Regulations 2003 restricts employment businesses from introducing or supplying candidates unless they have first “obtained various confirmations including any “authorisation which the hirer considers are necessary, or which are required by law or by any professional body, to work in the position which the hirer seeks to fill”.
Accordingly the supplying agency must carry out the check if it is not to be in breach of these Regulations, since all schools consider the authorisation (right to work check) necessary not because the IANA requires it.
Whilst there is no provision under the 2003 Regulations for a similar fine to that under the IANA, a defaulting agency can be censured by the Employment Agency Inspectorate, part of the Department for Business Innovation and Skills. Education agencies should therefore take note.
Dry stuff indeed, but where does this leave other agencies? There appears to be a black hole in government policy where workers are not employed, are engaged on contracts for services, or where they operate through companies that have opted out of the 2003 Regulations (and the Regulations themselves do not apply). No other requirement appears to be in place!
Further information and guidance on the checking process are available on the Home Office website
For more information about types and form of contract and immigration issues, or questions relating to regulations relevant to agency supply in any sector, contact Lawspeed on 01273 236236 or email [email protected]
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