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Global HR Lawyers

Ask About … Retail Fashion & Hospitality

19 July 2017

Many of our clients in the retail, fashion and hospitality sector face similar HR issues. Each month one of the members of our team will identify an issue, ask how you would deal with it and provide our advice. This month we asked Poppy and Naomi...

I am an HR Manager working for a restaurant business. Unsurprisingly, we employ many foreign nationals in our restaurants and are well used to carrying out the checks needed to ensure that our employees have the right to work in the UK. We have, however, run up against a problem with a foreign national who is working here as a student. We’re aware that foreign national students can only work in the UK for 20 hours per week, but the individual in question ended up working longer hours than was planned (when the weekly rota was set) because he covered a shift for a colleague who called in sick. The manager has now realised that this meant the employee worked 24 hours that week instead of the original 18 hours on the rota.

What can we do to correct this problem? Is it OK for us not to pay the employee for the additional four hours he worked beyond the 20-hour weekly limit?

A. Yes, it’s probably sensible for you not to pay the employee for those hours as then you can argue that he wasn’t actually working for you during that time. You also need to hope that no one finds out!

B. You should pay the employee for the hours worked as you have duty to do so. Unfortunately, the immigration non-compliance cannot be fully corrected retrospectively. There is no completely risk-free way of now resolving the issue and you should take a detailed look at the various risk factors before deciding how best to proceed.

C. The maximum weekly hours of work can be averaged over a month, so you need to check whether his average weekly hours are fewer than 20. Let’s hope they are!

D. The employee is entitled to be paid for the hours he has worked, but given that this results in a breach of his visa restrictions you need to speak to him and reach some agreement about him working fewer hours over the following weeks.

The correct answer is B.

Where an employer has not previously received a penalty for employing someone to work illegally, it may be able to self-report with minimal risk. However, once the breach has occurred, there is no way to be 100% certain of getting out of the situation without a fine. In many circumstances, with the right negotiation, it can be reduced - even to nil. But the surrounding circumstances and your mitigating factors will be very important in assessing the best way forward.

Even the most diligent employer can sometimes get caught out by the strict laws regarding the right to work in the UK, but something which seems to be a small “slip up” like this can result in significant legal consequences. Students who hold a Tier 4 General visa (like the employee you have mentioned) are restricted to working a maximum of 20 hours per week during term time. If an employer allows a student with this type of visa to work more hours, this could incur a civil penalty of £20,000 or even lead to a criminal conviction and an unlimited penalty if the employer “should reasonably have known” the employee worked illegally.

Difficulties can arise with the maximum working week because of the way it is calculated. The Home Office specified earlier this year that the 20 hours per week is measured from Mondays. So not only do you need to take a 100% compliant right-to-work check, including evidence from the student’s university of their term dates, but you also need to fit into the Home Office’s working week - even if your own shift allocation system doesn’t start on a Monday.

It is not an option for you to average the actual weekly working hours over a longer period, so the fact that this employee worked 24 hours in one week results in a technical breach of his visa restrictions. For example, you may work on a monthly shift allocation and ensure that any students do not work more than 80 hours each month, but that could easily lead to a breach of the immigration restrictions.

Also, the employee is entitled to be paid for the hours he worked and if you don’t do so he is likely to be unhappy about this! You then risk potential claims for unlawful deduction of wages, breach of contract and/or constructive unfair dismissal (depending on his period of service). Further, from an immigration point of view, the Home Office would look at the hours worked rather than when they were paid. Trying to avoid the breach of immigration restrictions by not paying the employee would merely be covering up the problem rather than solving it.

Over recent years, the Government has taken steps to create a hostile environment for illegal migrants by making it hard for them to work in the UK. One of the ways they have done this is by active regulation of employers through audits and cross-referencing information with other agencies. Hospitality sector employers are very often subject to surprise audits and dominate the public register of illegal working penalty recipients. In reality, most offenders are accidental rather than racketeers.
With Brexit looming on the horizon, compliance will only become more important and more challenging. It is crucial to ensure that your shift allocation system works to minimise the risk of non-compliance. All employers should have robust right-to-work checks in place, including a system for monitoring ongoing right to work and communicating any restrictions on right to work to relevant managers and employees. Often, you will find that foreign students themselves are keen to ensure they do not breach the restrictions of their own visas. If you ensure they know that you want them to end the shift early if it looks like running over 20 hours for the week, they are likely to keep a track of it too. They are at risk of being charged with an offence of working illegally, having their wages seized as the proceeds of crime and being banned from the UK for up to ten years. If you make this clear to them at the point of recruitment, they will most likely want to count their weekly working hours carefully!

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