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  • The “Byron Burger Sting”

    12th August 2016 in legal, Max Montague

    Few recent cases have aroused so much interest and public debate than that relating to the burger chains co-operation with the Home Office.
    The recent operation by the Home Office which culminated in tens off foreign nationals , employed by Byron Burgers being arrested made front page news and led to the burger chain being subjected to various demonstrations.
    Most of the public debate, following the raid, concentrated on immigration issues and the role played by the employer. There was, however, little focus on the purely legal aspect of the action which was solely based on the, “right to work” obligations, particularly those imposed on employers.
    In this case, it appears that Byron did initially follow the correct procedures but subsequently discovered anomalies in the documents produced to them by certain employees.
    Having followed the correct procedures, and co-operated with the authorities, Byron was never at risk of being prosecuted. Perhaps they mis-calculated the strong reaction from certain sectors but presumably weighed this against a civil penalty and a possible criminal conviction.
    In essence, the obligations on employers can be summarised as follows:-
    1. You must see the applicant’s original documents i.e. passport and any supporting Visas.

    2. You must check that the documents are valid with the applicant present.

    3. You must make and keep copies of the documents and record the date you made the check

    The UK governments guidelines give helpful advice on the procedure to be adopted:-
    You need to check that:
    • the documents are genuine, original and unchanged and belong to the person who has given them to you
    • the dates for the applicant’s right to work in the UK haven’t expired
    • photos are the same across all documents and look like the applicant
    • dates of birth are the same across all documents
    • the applicant has permission to do the type of work you’re offering (including any limit on the number of hours they can work)
    • for students you see evidence of their study and vacation times
    • if 2 documents give different names, the applicant has supporting documents showing why they are different, e.g. a marriage certificate or divorce decree
    If you are found to be employing an illegal worker you will get a ‘referral notice’ to let you know that:
    • your case is being considered
    • you may get an unlimited fine (also known as a ‘civil penalty’) for each illegal worker
    • Your business’s details may be published by Immigration Enforcement as a warning to other businesses not to employ illegal workers.
    You won’t have to pay a fine if you can show you made the correct ‘right to work’ checks.
    There is also the possibility of criminal prosecution. You can be sent to jail for up to 5 years and receive an unlimited fine if you know or should have known that you employed someone who doesn’t have the right to work in the UK.
    It is therefore essential for all employers to have systems in place to ensure that all procedures are followed and that the correct checks are carried out. If not already being done, any offer of employment should clearly be subject to a satisfactory “right to work “ check.


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