In this addition of the newsletter we discuss:
1. A company director being disqualified for employing illegal workers.
2. A man losing his job even though he had indefinite leave to remain in the UK.
3. The Snoopers Charter
Company director banned for employing illegal workers
The government is much stricter these days with employers who flout the law.
It is illegal under the Immigration Act 2016 to employ an illegal worker. The Immigration and Asylum and Nationality Act 2006 is clear, employers are responsible for compliance with the law and must carry out the necessary checks to ensure that they only employ staff legally entitled to work in the UK.
In November 2015 the Insolvency Service issued a press release advising the public that it had disqualified the director of an Indian restaurant for 6 years for employing illegal workers. The director in question will not be a director of a company for 6 years from 9 November 2016.
The Home Office Immigration Enforcement team turned up at his business premises only to discover that 3 of the staff were not legally entitled to work in the UK. I have advised in a previous newsletter that there will be a fine of £10,000 per illegal employee. So that employer was fined £30,000.
On 2nd December 2016, the company went into liquidation owing creditors £34,296 of which £30,000 had been imposed by the Home Office. It is not rocket science, the Home Office clearly put this company out of businesses because they tried to use cheap labour.
Sue Macleod, Chief Investigator of the Insolvency Service stated “Illegal workers are not protected under employment law, and as well as cheating legitimate job seekers out of employment opportunities, these employers defrauded the tax payer and undercut honest competitors…..The public has a right to expect that those who break the law will face the consequences and this should serve as a warning to other directors tempted to take on illegal staff”[i].
Tips for employers
Do not take the risk. Ensure all staff are legally entitled to work in the UK.
No sure what you are doing, ask for help.
I have noticed since the draconian immigration law changes, some employers when advertising jobs have specifically stated, do not apply if your immigration papers are not in order. This is not unreasonable; because of the risk of the penalties that may be imposed; however employers must take care not to discriminate against minorities legitimately entitled to work in the UK.
Tip for employees
Sort out your immigration status.
The employment law will not protect you if you are employed illegally.
Your income can be seized as the proceeds of crime. I do have difficulties with this one and believe at some point that it will be challenged in the courts.
Employers fairly dismiss man who had indefinite leave to remain in the UK
A Jamaican man is dismissed from the employ of Abellio London Ltd because he could not provide his employers with evidence that he was entitled to live and work in the UK.
In the case of Baker v Abellio London Ltd (2016), Mr Baker, the Claimant, had travelled from Jamaica to the United Kingdom as a child; at the time he was using a Jamaican passport. Mr Baker had lived in the United Kingdom for a long time and had indefinite leave to remain. However he had not left the United Kingdom for a holiday accordingly his Jamaican passport had expired and he had not acquired a UK passport.
Mr Baker was employed by a transport company, Abellio Ltd. The employers were checking the staffs’ immigration status. Mr Baker was asked to provide evidence of his immigration status. Mr Baker had to prove to his employers that he had a right to live and work in the UK without restriction. Mr Baker did not have a valid Jamaican passport as it had lapsed. Nor did he have a UK passport. Mr Baker could not prove he had indefinite leave to remain, although it had been acquired.
Mr Baker was loaned £350 by his employer to enable him to get the correct legal documents to avoid dismissal. He failed to do so.
Mr Baker acquired the passport as requested by his employers; however he failed to obtain the endorsement as proof of his indefinite leave to remain in the UK.
Mr Baker was not a UK citizen. He was a Jamaican national, even though he had indefinite leave to remain. A passport alone therefore was not sufficient evidence of his rights to live and work in the UK. The endorsement was required.
Mr Baker’s employers had arranged a meeting with him to discuss the matter and warned him that he may be dismissed. Mr Baker failed to attend the meeting.
Mr Baker was ultimately dismissed. He appealed, but the appeal failed. The employers Abellio had followed a fair dismissal procedure; accordingly the dismissal was fair and Mr Baker’s claim for unfair dismissal was rejected.
I understand that 13% of the UK population do not own a passport; however if you are subject to the immigration rules of the UK, you have to comply in order to work.
· Employer: provided you follow a fair dismissal procedure and the employee has not provided you with valid documents to prove their right to work in the UK, your dismissal would be viewed as fair.
· Employee: it is a prerequisite that you ensure you have valid evidence of your right to live and work in the UK. Do not let your passport or relevant legal document lapse without obtaining a replacement.
The Snoopers Charter
Very few people have heard me swear, that is because I believe it is not necessary. There are loads of useful, colourful words in the English language that can convey a message without the need for the ‘F’ word! However when I think about this piece of legislation and its true implications for everyone’s privacy or lack thereof. I get extremely angry and want to shout, scream and swear profusely; because whilst the opposition were taking an extensive ‘nap’ the conservative government pushed through one of the most sweeping pieces of surveillance legislation this country has ever seen. The offensive legislation is referred to as the ‘Investigatory Powers Act’ (also known as the ‘snooper’s charter’).
It is fair to say privacy is dead. I know many of you will argue that this piece of legislation is to protect us from terrorists. However the terrorists are not so sophisticated. It is the lack of sophistication and lack of use of technology why the Paris bombers were caught so quickly.
I remember when I first read through aspects of this dreadful legislation I wondered how I was going to handle such snooping. Good encryption perhaps! Put my laptop in the Fridge[ii].
Paul Bernal, a leading lecturer on Information technology law described the bill as ‘the most invasive surveillance law in democratic history’.
Edward Snowdon, through twitter; “it is the most intrusive and least accountable surveillance regime in the West”.
Apple made a formal submission, specifically on the issue of encryption, to the Investigatory bill’s committee. Apple stated in their submission, “we believe it would be wrong to weaken the security for hundreds of millions of law-abiding customers so that our systems will be weaker for the very few who pose a threat. In this rapid evolving cyber-threat environment, companies should remain free to implement strong encryption to protect customers.” I agree with Apple!
What the new bill allows the authorities to do in summary
1. Web and phone companies will have to store records[iii] of all our website visits, telephone calls made, what apps use and text messages for 12 months. There is no need for a warrant to get access to this information. The police just need the authority of someone senior to access the information for their own use. There is just the right of these institutions to hack. This cannot be right!! What will be retained is our metadata says the government and not the content. Metadata the experts advice is more intrusive than content because it allows the police etc., to make cross references.
2. With this type of surveillance, everything will be under surveillance and privacy as we know it will become a thing of the past. However, some companies have made it clear to the government that they will help customers (like me) to circumvent the new legislation. Thus virtual private networks have been promoting their products to the general public to get override this legislation.
3. Security services will be able to bug computers and phones upon obtaining a warrant. Companies such as Apple, Samsung etc., will have to assist security by getting rid of any encryption if it is deemed necessary as part of an investigation.
4. The security services will be able to acquire and analysis bulk data. For example all NHS records. The protection provided to prevent this is called double-lock. A Judge has to approve the warrant to be issued to the security services and a senior minister. My first reading of the original bill was that the Judges powers were weak and ineffective. Therefore there is the real risk that this power will be abused by the security services.
5. The bill is so outrageous that whilst it provides some protection for sensitive professions, such as my own. Thus in theory it protects the concept of ‘legal professional privilege’. In other words you can speak to me in strict confidence and know that it will stay with me. The harsh reality is that the makes some inroads into the concept of ‘legal professional privilege’. View this as potential the new legislation has created an exceptions. In other words, I may have to convey to the authorities what you have told me. To be honest, if I deemed it as intrusive and unnecessary I will not part with the information.
Regrettably this legislation will become law by the end of the year. There are only two forms of saving grace. First of all experts have stated that it is going to be very expensive for the various companies to retain the records needed by the government for compliance.
The bit that gets me more excited, is the second saving grace. An intelligent person will challenge this piece of legislation and it will be in the European Court of Justice. Thank goodness for ‘crowd funding’. Hopefully it will be with the court before Brexit and it will naturally be struck down by lightening. I cannot see why the Judges would not make a unanimous decision. There is absolutely no way a Judge will approve this nonsense in a democracy. I cannot wait for this to happen as the legislation is just dangerous and open to abuse.
Should you or any person you know have a legal problem relating to employment, immigration or company law issues raised by this article. Please do not hesitate to provide them with our contact details so that we may assistance.
[ii] In a book I read on Snowden, he did this for the purpose of security.
[iii] Internet connection record