From professional to prison '“ how the line is narrowing

You might think that you would know instinctively where the line is drawn between criminal and civil conduct.

Elaine McIlroy, partner at Weightmans (Scotland) LLP. Picture: Contributed
Elaine McIlroy, partner at Weightmans (Scotland) LLP. Picture: Contributed

Theft or murder is clearly criminal, whereas you might expect that some sort of procedural breach in a business context would typically fall under the civil rather than the criminal law. Therefore, you might go on to assume that it wouldn’t have the potential to land you in jail. Think again.

The new Immigration Act 2016, which hit the statute books earlier this month, seems to be counter-intuitive in that it has the potential to criminalise employers even if they generally try to do the right thing in terms of preventing illegal working.

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Careless breaches in processes that may result in a business employing a migrant worker in breach of their visa conditions could result in a criminal prosecution when the new provisions are in force. That is bad news for employers and likely to cause some discomfort to HR directors and others who are responsible for overseeing those procedures.

Once the illegal working sections of the new immigration act are fully operational – which is likely to be in the coming months – a new criminal offence will be introduced that employers need to be aware of.

Employers who have “reasonable cause to believe” that they are employing an illegal worker will be at risk of criminal prosecution – in addition to those who knowingly employ illegal workers. The risk of this new broader criminal offence is not to be sniffed at if you are a director or senior employee. The penalty is a custodial sentence of up to five years and the policy aim of introducing these new provisions is to ensure that more employers are prosecuted under the criminal law in the future.

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The criminal offence of “knowingly” employing an illegal worker that had been in place for years was effective in deterring the worst sort of employers – those who knew what they were doing and who deliberately and knowingly employed and exploited vulnerable migrant workers. There are some well-documented cases of employers treating employees as slaves and exploiting their migrant status. For them the force of the criminal law seemed right. But those cases were rare and there were only around ten prosecutions per year. In comparison, around 2,000 civil penalties are issued to employers each year.

This significant expansion of the criminal offence to catch those who have “reasonable cause to believe” that they are employing someone illegally is likely to catch out a much greater number of employers in the future. The act says specifically that it includes employing someone beyond their visa expiry date. It also includes employing someone on a full-time basis if they only have permission to work up to 20 hours a week (which would be the case for a student for example). It could also include not dismissing someone promptly enough when you discover that they are illegal.

This means that those employers who simply have patchy procedures in place in relation to preventing illegal working are exposed. Even those employers who have good procedures, can sometimes find themselves with an illegal working issue where someone has simply forgotten to deal properly with an employee on the books whose visa has expired.

That can happen to even the biggest and well-run organisations – especially those with very large workforces. A large supermarket made front page news some time ago for employing students in excess of their permitted 20 hours a week. Of course that sort of breach is serious and it needs to be dealt with, but is it the place of the criminal law to do that? Currently civil penalties of up to £20,000 per illegal worker appear to provide a good deterrent for many employers.

As if this wasn’t enough bad news for employers, there is one further risk in the immigration act that employers should be mindful of. When the relevant provisions come into effect, a chief immigration officer (without any sort of court process) will have the power to shut down business premises for up to 48 hours if they are “satisfied on reasonable grounds” that the employer is employing an illegal worker on those premises.

This will apply if the employer has previously had a civil penalty for illegal working in the last three years – which applies to lots of businesses. So the prospect of one further suspected breach leading to an unplanned shut down of the business could cause all sorts of operational issues. The reputational risks are also substantial.

There is no doubt that the aim of tightening these areas – to ensure that everyone in the UK is here legally – has widespread backing. These new laws are the natural extension of that aim, and business leaders need to shape up to make sure they are not vulnerable to becoming, however inadvertently, part of the criminal community residing at Her Majesty’s Pleasure.

• Elaine McIlroy is a partner specialising in employment law at Weightmans (Scotland) LLP.