Criminal liability for all Employers

Under new legislation implemented by the Home Office on 1st May 2004, employers are under stricter obligations to keep check on who they employ and whether their new employees are permitted to work within the UK. The new regulations have been designed to make it easier to prosecute companies who employ illegal workers whilst also making it easier for legitimate businesses to keep within the law. To avoid criminal liability employers must inspect and take copies of specified documents before a new employee commences employment. Home Office guidance has also been issued to all employers detailing the new guidelines.

The documents that an employer must check have now changed. In order to gain a defence against criminal liability all employers must ensure that new employees can produce documents contained on one of two lists specified by the Home Office.

• From the first list employers may accept a single document as standalone evidence. Examples include certain passports, ID cards and other specified travel documents.
• Where an individual has not been issued with documents from the first list an employer can accept a combination of specified documents contained in a second list. Examples include a work permits or other approvals issued by Work Permits UK together with passports or other relevant travel documents (the Home office has published guidance containing the full lists of acceptable documents)

Once an employer is satisfied the documents accurately relate to the particular worker, copies must be taken and recorded. Taking copies of the original documents will provide employers with a defence against a fine of up to £5,000.

Employers must also ensure that when compiling with the new regulations their recruitment processes remain fair and do not discriminate against workers on the grounds of race or religion, amongst other grounds.

Full guidance can be found at www.ind.homeoffice.gov.uk

Carol Shaw
Partner

20 May 2004