Workers from overseas and good HR practice

The government’s recent announcement that it is introducing further measures to reduce illegal working and to protect foreign workers from exploitation puts the spotlight on good recruitment practice in this area. There are a number of important actions an employer needs to take to ensure that foreign workers have the legal right to work, and some key good practice points are set out below.

Document checks

It may sound obvious but it is essential to carry out checks of original documentation to ensure that your employees have the legal right to work in the UK to avoid the risk of a substantial fine to your company. The maximum penalty will be doubled from May 2014 to £20,000. Employers should check that all prospective employees or workers have the necessary documentation giving them the right to work in the UK and the necessary qualifications or professional accreditations to do their jobs, and keep copies of documents which demonstrate this. It will be sufficient grounds to withdraw an offer of employment fairly if a prospective employee is not able to provide original documentation which demonstrates the legal right to work in the UK.

Right to remain

If a prospective employee has documentation showing limited right to remain the UK they can still be offered a permanent contract of employment for the duration of the right to remain. The contract will automatically terminate if they do not obtain extended or permanent right to remain in the UK. However, it is good practice to offer a fixed term contract only for the duration of the temporary leave to remain, as this will highlight the need to keep the arrangement under review.

Safeguarding checks and overseas workers

Where the role you are recruiting for requires a safeguarding check through the DBS, and the prospective employee is coming from abroad, the applicant will need to apply to the government of their own country to obtain criminal records information. If the prospective employee has lived in this country, a DBS check should also be carried out. There are useful resources to point you in the right direction through www.gov.uk and UK Visa & Immigration service websites. Employers will need to bear in mind that it may take time for a prospective employee to obtain the check from their home country.

Sponsorship

Some individuals will require sponsorship in order to remain in employment, and an employer may need a sponsor licence to employ someone from outside the European Economic Area (EEA) and Switzerland, even for unpaid work. Sponsoring someone does not guarantee that they will be allowed to come to or stay in the UK. Sponsoring employers also have a duty to inform UK Visas and Immigration (UKVI) if the sponsored workers are not complying with the conditions of their visa.

Secondments and transfers to the UK from an overseas division

Employers considering seconding an employee from an overseas division, or posting an employee to the UK will need to address the immigration position and ensure that a work visa is in place. There are different types of work visa according to the role being undertaken in the UK, and further guidance is available from www.gov.uk

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