Employing migrant workers



 

Definition of an employer for the purposes of section 8

Q38 - What is the definition of 'employer' for the purposes of section 8?

Under section 8, an 'employer' is defined as a person who employs an individual under a contract of employment. This can be a contract of service or apprenticeship, whether express or implied. If the contract is expressed, this can be either orally or in writing. In most cases it should be clear when you are entering into such a contract of service with an employee, and that you need to make a check under section 8 to establish a defence.

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Q39 - How can I tell if my prospective worker will be classed as someone who is 'self-employed' or 'my employee' for section 8 purposes?

In a small number of cases it may not be easy to decide whether someone who will undertake work for you will be your employee or will be self-employed. The exact nature of the relationship is not determined by whether the worker is designated as an 'employee' or 'self-employed'. Rather, whether a person is truly your employee or self-employed will depend on all the facts and circumstances of the case.

The criteria below should provide you with a guide as to what status your worker may have, although it is only a brief guide and does not cover every situation. For each relationship the whole picture needs to be assessed in light of the facts.

If you can answer yes to the following questions, then that would point to the worker you are due to take on being your employee:
  • Will you require the personal service of the worker?
  • Will you be able to control when and how the work is done, what tasks have to be done and where the services are performed?
  • Will you supply the tools or other equipment needed to do the work?
  • Will the employee be paid by the hour, week or month and receive overtime pay?
If, on the other hand, you can answer yes to the following questions; that would point to your worker being self-employed:
  • Will the worker have the right to provide a substitute, or engage their own helpers?
  • Will the worker decide whether or not to accept individual tasks and how to carry them out?
  • Will the worker make their own arrangements for holidays or sickness absences?
  • Will the worker be free to do the same type of work for more than one employer at the same time?
  • Will the worker provide the main items of equipment needed to do the job in question?
  • Will the worker have a real risk of financial loss?
Where there is any doubt, you should look to establish the statutory defence for that person rather than risking conviction if you are found to be employing an illegal worker.

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Q40 - Where can I get further advice?

If you are concerned about the position of someone who is due to work for you, or is currently working for you, the following guidance is available free of charge: You may also wish to seek legal advice before taking someone on.

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Q41 - Am I defined as the 'employer' if I use an employment agency to find my staff?

Again this will depend on the nature of the relationship between you and your worker. If you use an employment agency to find new staff for you, but you then directly employ those staff under a contract of service with you, then you will 'employ' those people for the purposes of section 8.

If you obtain workers from an employment agency and it is apparent from all of the facts and circumstances that the nature of the relationship is such that they are not your employees, then you will not 'employ' them for the purposes of section 8.

Even where you use an agency to select candidates and you are not the employer for the purposes of section 8, you should still ensure that you regularly audit their document-checking processes or even carry out documentation checks yourself.

You may lose the service of any of your workers if they are found to be working illegally in the United Kingdom.

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Q42 - Who in the organisation is held liable for employing someone illegally?

The 'employer' commits the offence and it will depend on the circumstances who that might be. It may, for example, be a named individual, a company, or each partner in a partnership. If it is a corporate body, then that body itself will be liable.

If the employer is a company, any director, manager, secretary or other similar officer, or any person who was purporting to act in such a capacity may also be guilty of an offence, if it was committed with their consent or connivance, or as a result of their negligence.

In the case of partnerships, each partner will be considered guilty of the section 8 offence and will be proceeded against accordingly.

The position is different for a limited partner in a limited partnership who will only be liable in those circumstances where a director, manager, secretary or other similar officer of a company would be liable.

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Q43 - What if I acquire staff as the result of a TUPE transfer?

You are not expected to make checks on people who become your employees as a result of the provisions of the Transfer of Undertakings (Protection of Employment) Regulations. You will not be prosecuted under section 8 if you can demonstrate that any staff working illegally for you were acquired under this process.

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Q44 - I am an employer based in the UK and I wish to employ a non-EEA national outside the UK. Would I be required to establish a defence under section 8?

It is a criminal offence under section 8 of the Asylum and Immigration Act 1996 to employ a person aged 16 or over who is subject to immigration control and who has no permission to work in the UK, or who works for you in breach of their conditions of stay in the UK.

The law states that the offence of employing an illegal migrant worker only applies where a person employs an individual who is "subject to immigration control." Therefore, if your company is based in the UK and your job applicant requires a visa or a work permit to work here, then they are subject to immigration control and you should take the necessary steps to ensure that you have established a statutory defence under section 8 before employing them. Even if the employee spends much of his time abroad; the employee may still be classed as part of the UK workforce.

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Q45 - My business employs workers on a casual basis through the internet and in many cases, managers will not meet with employees and therefore will be unable to take reasonable steps to verify the identity or eligibility to work of their employees. What steps can I take to ensure that I can establish a defence under section 8?

If the company is classed as an 'employer,' then they will be responsible for carrying out section 8 checks. However, if the company are contracting out specific jobs or services for individuals, for example, website designers, then they may not fall into the category of 'employer', and would not be subject to section 8 prosecution, and would not be required to establish the defence. See Q.38 and Q.39 for further details.

There are cases where the law is unclear and for further clarification, the DTI and HMRC can also provide further information on how to define who is an 'employer' and who is an 'employee'. It should also be established whether the employer is UK based and whether the employees are also based in the UK. If the employer is based outside of the UK, then section 8 may not be applicable.

There are no specific exceptions in the section 8 regulations for dealing with recruiting people through the internet. If an employer has employees who are subject to UK law and has established that they are liable under the provisions of section 8, then they should consider changing their recruitment practices.

In order to establish a defence under section 8, it is up to the employer to satisfy himself or herself that the person that they are employing has entitlement to work in the UK. This can be done through the by following steps 1 - 3, as detailed in Q.8, but this would necessitate meeting with the job applicant to verify that the person is the holder of the documents provided, and this should be done before employment is offered.

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