Neil Buck: Leaked immigration paper could cause problems for UK employers

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You perhaps read or heard about it in the news this week that the Guardian newspaper published a leaked draft document by the Home Office, covering the government’s immigration proposals.

Measures in the paper include:

  • Driving down the number of low-skilled EU migrants by offering them a maximum residency of just 2 years, while those in high-skilled occupations could be granted permits for 3 to 5 years.
  • Giving preference in the jobs market to resident workers.
  • More stringent right to work checks to be carried out by employers.

Challenges ahead for employers

In June, a report by the CIPD and the National Institute of Economic and Social Research revealed that 35% of employers in traditionally lower-paying sectors, such as food manufacturing, hospitality and care, had found themselves with no option but to turn to EU nationals after being unable to find UK workers willing to take on low or no-skill roles.

Meanwhile, a CIPD survey published in February found that 27% of employers had noticed evidence of EU staff members planning to leave their organisation, or the UK entirely, this year, highlighting a perfect storm of recruitment and retention challenges ahead.

If these stats are correct, this obviously poses a massive problem for many Lincolnshire businesses who could now suffer further as a result of the consequence of these leaked measures (if they become law), given the large farming and food businesses located here. The fact is that some unskilled or low-skilled employers have no alternative than to recruit EU migrant labour because of the unattractiveness of certain roles or sectors to UK nationals. Many businesses in the county already face challenges to recruit the manual farm labourer and food processing plant type jobs. And it looks like it will get worse.

There is change ahead no doubt and these leaked measures could mean that some employers will have to consider their reward, recruitment, retention and people development strategies to ensure they are doing all they can to attract and develop British people. Worryingly, but understandably, it could also mean that more businesses may instead look to invest in more automation which would actually reduce their workforce altogether. The impact of that would affect the local economy.

The leaked measures also suggest the current right to work check procedures*, that all employers should ideally do to ensure they are fully legally protected from hefty fines if it transpires the person doesn’t have the legal right to work here, may become more burdensome. So, it sounds like the employers would have to do even more than at present to check an individual’s immigration status on behalf of the government! I’m sure if you asked them, the majority of business owners would say that they didn’t expect to become border agency enforcement officers as part of their employment obligations due to Brexit!

All in all, the leaked document doesn’t sound great for employers and would pose many challenges. That’s not to say they can’t and won’t overcome those challenges if necessary, it just certainly means more obligatory hassle and cost passed on to the employer, yet again. However, it should be borne in mind that it was only a draft document and no doubt many things will be change between now and then. Only time will tell.

*Current right to work checks:

Prior to allowing a job applicant to start work, employers should take the following steps to check whether he or she has the right to work in the United Kingdom:

  • Require the job applicant to produce original documents from List A or B , indicating that he or she has the right to work in the United Kingdom.
  • Check that the features of the documents meet the requirements set out in List A and B, that they appear to relate to the job applicant and that they are not forgeries.
  • Take photocopies of the original documents and certify them as true copies of the original documents (the individual certifying the documents must clearly sign, write his or her name and state the date on which the copy was taken).

Although it is not a legal requirement to check and retain copies of such documents, by doing so employers are provided with a statutory excuse (defence) against liability for a civil penalty for illegally employing a migrant worker. Copies of such documents should be kept for the duration of the person’s employment and for two years thereafter. However, an employer that checks and retains copies of documents confirming a worker’s right to work will not have a statutory excuse if it nonetheless knowingly employs an illegal migrant worker or has reasonable cause to believe that an employee does not have the lawful right to work in the UK.