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Legal Eagle

The UK’s departure from the European Union is fast approaching. With the hospitality sector being particularly reliant on migrant workers, Legal Eagle David Lucas explores the implications.

During the referendum campaign, the subject of immigration was prominent. Since the referendum, a number of illuminating statistics have been produced regarding migrant workers in the leisure industry:

  • There are approximately 150,000 EEA workers in the hospitality sector.

  • 24% of the workforce in the sector is made up of non-British nationals, higher than retail, travel and care.

  • In eating and drinking out businesses the number of migrant workers rises to 37%.

  • Migrant labour in restaurants has increased by 18% and in pubs, bars and nightclubs by 59% (nearly all of which were EU migrants).

Migrant workers in specific jobs included chefs (42%), restaurant managers (35%), waiting staff (29%), kitchen and catering assistants (29%) and bar staff (13%).

Right to work checks

All employers, irrespective of size or sector, are required to prevent the employment of illegal workers. In order to comply with this requirement, it is necessary to carry out a three step check to confirm that a potential employee is entitled to work in the UK.

Right to work checks should be carried out on all potential employees. All job applicants must be treated in the same way in order to avoid discriminating against anyone.

A right to work check must be carried out before a person is employed in order to ensure that they are legally allowed to do the work in question.

There is also a requirement to conduct a follow- up check on people who have a time-limited permis- sion to work in the UK when the permission expires.

The right to work check will consist of a person producing to an employer a document which is accepted as demonstrating that the person has permission to work. The lists of acceptable documents can be found in Annex A of the Employer’s Guide to Right to Work Checks published by the Home Office which can be found at: https://assets.publishing.service.gov.uk/government/u ploads/system/uploads/attachment_data/file/72085 8/29_06_18_Employer_s_guide_to_right_to_work_c hecks.pdf 

There are three steps to the right to work check:

• Obtain the person’s original documents as specified in the guidance.

• Check the validity of the documents in the presence of the holder.

• Make and retain a clear copy, and make a record of the date of the check.

It is essential that employers carry out the right to work checks as it is illegal to employ someone aged 16 or over who is subject to immigration control and is not allowed to undertake the work in question. It is an offence if an employer knows, or has reasonable cause to believe, that they are employing an illegal worker. The maximum penalty on conviction is five years imprisonment and/or an unlimited fine. In routine cases involving the employment of illegal workers, a civil penalty will be imposed as an alternative sanction.

In order to deal with an employer who continues to use illegal labour, there is also a power to impose a closure notice and compliance order.

Immigration offences and penalties are grounds on which a licence or certificate issued under the Licensing Act 2003 may be refused or revoked.

Licensing Act 2003

In order to prevent illegal working in premises licensed for the sale of alcohol or late night refreshment, the Immigration Act 2016 amended the 2003 Act in a number of ways:

  • Premises licences to sell alcohol or provide late refreshment and personal licences cannot be issued to an individual who does not have permission to be in the UK, or is not entitled to undertake work relating to the carrying on of a licens- able activity.

  • Licences issued to those with limited permission to be in the UK will lapse when their permission to be in the UK and work in a licensable activity comes to an end.

  • Immigration offences, including civil penalties, are “relevant offences” as defined by the 2003 Act.

  • The Home Office (Immigration Enforcement) has been added to the list of responsible authorities which must receive premises licence applications (except regulated entertainment only licences) and, in some limited circumstances, personal licence applications.

  • Home Office (Immigration Enforcement) may request a licensing authority to review an existing licence or certificate when it has concerns relating to the licensing objective of preventing crime and disorder, including immigration crime and preventing illegal working in licensed premises.

  • Immigration officers are permitted to enter premises which they have reason to believe are being used to sell alcohol or provide late night refreshment, to investigate whether immigration offences are being committed in connection with the licensable activity.

  • The licensing authority must review a premises licence if the premises to which it relates were made the subject of a compliance order to prevent illegal working.

A case in point

Employment of an illegal worker was an issue in a relatively recent High Court case. In that particular case, a restaurant was the subject of a joint visit by the police and immigration officers. It was discovered that the chef at the restaurant had no current entitlement to remain and work in the UK.

The holder of the premises licence accepted that he employed the chef without paperwork showing a right to work in the United Kingdom. He also accepted that he had paid the chef cash in hand at a rate less than the minimum wage without keeping or maintaining PAYE records. He also purported to deduct tax from the chef’s wages and did not account to HMRC for the tax deducted.

On the basis of those facts the licensing authority revoked the premises licence. The licence holder appealed to the magistrates’ court. Somewhat surprisingly, the appeal was upheld by the District Judge who over-turned the decision to revoke the licence. The licensing authority appealed to the High Court where the Judge allowed the appeal and revoked the premises licence.

Licensing authorities have recently been given the power to suspend or revoke a personal licence for the commission of a relevant offence under the 2003 Act. This power is now being used by licensing authorities in respect of the employment of illegal workers.

European Union workers

Concerns have been raised about the ability of EU citizens to continue working in the hospitality sector after the UK has left the European Union. The Government has stated that there will be no change to the rights and status of citizens living in the UK until 2021. An EU citizen who wishes to continue living in the UK after June 2021 will be able to apply for “settled status” for them and their family.

The scheme will be fully open by March 2019 and the deadline for applying will be 30 June 2021.

Full details of the scheme are still subject to approval by Parliament but further guidance can be found at: https://www.gov.uk/settled-status-eu-citizens- families/print 

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