Corporate Strategy & Finance (Business Recovery Insolvency) Alert - Business Sales: New Employment Risks.At the end of February 2008 new rules were introduced aimed at tightening the existing measures to combat illegal working, by making it more difficult for people to exceed any permission granted to stay in Great Britain Great Britain, officially United Kingdom of Great Britain and Northern Ireland, constitutional monarchy (2005 est. pop. 60,441,000), 94,226 sq mi (244,044 sq km), on the British Isles, off W Europe. The country is often referred to simply as Britain. or continue working in breach of the conditions imposed on them by the immigration authorities immigration authorities npl → servicio sg de inmigración immigration authorities npl → service m de l'immigration and to make it easier for employers to ascertain whether it is legal for them to engage any prospective employee. Prevention of illegal working The new rules, introduced by s 15 - 25 of the Immigration immigration, entrance of a person (an alien) into a new country for the purpose of establishing permanent residence. Motives for immigration, like those for migration generally, are often economic, although religious or political factors may be very important. , Asylum asylum (əsī`ləm), extension of hospitality and protection to a fugitive and the place where such protection is offered. The use of temples and churches for this purpose in ancient and medieval times was known as sanctuary. and Nationality nationality, in political theory, the quality of belonging to a nation, in the sense of a group united by various strong ties. Among the usual ties are membership in the same general community, common customs, culture, tradition, history, and language. Act 2006 (the Act), came into force on 29 February 2008 and apply to all employment commencing after that date. They replace the rules under s 8 Asylum and Immigration Act An Immigration Act is a law regulating immigration. A number of countries have had Immigration Acts:
The offence OFFENCE, crimes. The doing that which a penal law forbids to be done, or omitting to do what it commands; in this sense it is nearly synonymous with crime. (q.v.) In a more confined sense, it may be considered as having the same meaning with misdemeanor, (q.v. An employer will commit an offence if it employs a person over 16 years old who is subject to immigration controls and not entitled en·ti·tle tr.v. en·ti·tled, en·ti·tling, en·ti·tles 1. To give a name or title to. 2. To furnish with a right or claim to something: to work in the job he is engaged in. The penalty for an employer in breach of this provision is a fine up to a maximum of [pounds sterling]10,000. The statutory excuse An employer will have a statutory excuse against liability under the Act if it can be shown that BEFORE the person was employed the employer checked and retained copies of certain listed documents. It is not possible to establish a statutory excuse after the employment has started. There is only one exception to the provision that the statutory excuse cannot be established retrospectively. The new rules have introduced a single circumstance where there is a grace period to conduct the necessary checks on an employee: where a company acquires employees pursuant to a Transfer of Undertakings (Protection of Employment) Regulations 2006 transfer of a business. In those circumstances, the new employer must conduct the same document inspection as for any prospective employees but has 28 days from the date of the transfer to complete the necessary checks on all transferring employees. The documents which a prospective employee may produce to establish a right to take up the proposed employment are contained in two lists: List A and List B. List A comprises those documents which prove that a person is not subject to immigration controls and has no restrictions on his stay and employment in the UK. These documents provide a statutory excuse for the whole of the period of that person's employment. List B documents show that a person has limited leave to be in the UK or may only be employed in certain types of work. List B documents establish the statutory excuse for only 12 months and an employer must repeat the checks every year until the employee produces a List A document, leaves the employment or leaves the country. Three steps The employer must see original documents from either List A or List B and be satisfied they are genuine and not tampered with. The employer must be satisfied that the age and appearance of the prospective employee is consistent with the photograph and date of birth in the documents. Any differences in names on the documents must be explained by further documentation. The documents must be checked for expiry dates expiry date expire n → date f d'expiration; (on label) → à utiliser avant ... expiry date expire n → Ablauftermin m and any UK Government endorsements permitting the work in question. Copies must be kept and retained, for 2 years after the end of the employment. These steps must be followed for any annual follow-up checks and the date of the follow-ups recorded. A failure to conduct the follow-up checks is also an offence. To avoid any exposure to race discrimination claims the same checks should be made of all potential employees. An employer should not rely on a prospective employee's claim to British nationality without verifying it in accordance with the Act. This is a change from the rules that continue to apply to employees taken on before 29 February 2008; a statutory defence established before the commencement of the employment in this earlier period will be valid for the whole of the employment. An employer in breach of rules in respect of illegal workers engaged prior to 29 February 2008 will still be liable under these rules, where the penalty is a fine of [pounds sterling]5,000 per illegal worker. The statutory excuse will not be available to any employer who knows the person is working illegally. Under the Act an employer in this situation commits a criminal offence punishable pun·ish v. pun·ished, pun·ish·ing, pun·ish·es v.tr. 1. To subject to a penalty for an offense, sin, or fault. 2. To inflict a penalty for (an offense). 3. by an unlimited fine and/or 2 years imprisonment Imprisonment See also Isolation. Alcatraz Island former federal maximum security penitentiary, near San Francisco; “escapeproof.” [Am. Hist.: Flexner, 218] Altmark, the German prison ship in World War II. [Br. Hist. . When should an Insolvency Practitioner In the United Kingdom an Insolvency Practitioner (usually abbreviated to IP) is a person qualified to act in connection with formal insolvency cases and to give advice on the subject. Quite often IPs have an accountancy background. be concerned? Liability under the Immigration, Asylum and Nationality Act 2006 falls on the employer and, unless it can be demonstrated that the statutory excuse was established prior to the commencement of the employment, liability may be imposed at any time an employer is found to be employing illegal workers. When is an insolvency practitioner an employer? There are limited circumstances in which an insolvency practitioner will be the employer. In administration, the administrator is the agent of the company and all continuing employment contracts remain with the company. Any person engaged in the course of the administration will also be an employee of the company, not the administrator. However it would be prudent of the administrator to ensure that it is lawful Licit; legally warranted or authorized. The terms lawful and legal differ in that the former contemplates the substance of law, whereas the latter alludes to the form of law. A lawful act is authorized, sanctioned, or not forbidden by law. for the company to employ a prospective employee in accordance with the Act and an administrator should ensure that, where a 12 month statutory excuse has been established, all reviews of an employee's entitlement to remain and work in the country are conducted when due. This situation can be contrasted with the position of an administrative receiver who, whilst also the agent of the company, is personally liable on any contracts of employment adopted by him in connection with carrying out this function. In these circumstances, it would be prudent for an administrative receiver to conduct an investigation of all continuing employees prior to the commencement of his appointment. The commencement of liquidation The collection of assets belonging to a debtor to be applied to the discharge of his or her outstanding debts. A type of proceeding pursuant to federal Bankruptcy terminates all contracts of employment. Where certain employees are to be retained during the winding up, this is on a new contract of employment and so, again, it would be prudent for the liquidator Liquidator Person appointed by an unsecured creditor in the United Kingdom to oversee the sale of an insolvent firm's assets and the repayment of its debts. to investigate the legality le·gal·i·ty n. pl. le·gal·i·ties 1. The state or quality of being legal; lawfulness. 2. Adherence to or observance of the law. 3. A requirement enjoined by law. Often used in the plural. of the employment of every person it is proposed to engage before the commencement of the employment. When advising a purchaser of a business under the Transfer of Undertakings (Protection of Employment) Regulations 2006, an insolvency practitioner should ensure that all the information about transferring employees required to be supplied by the seller is presented as quickly as possible. However a purchaser cannot rely on the seller's warranties as to the immigration status of the transferring employees and so should conduct a full investigation prior to completion and again within 28 days of the date of transfer in case there was not full disclosure before completion. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Mr John Alderton John Alderton (born 27 November 1940) is an English actor who is best known for his roles in Upstairs, Downstairs, Thomas & Sarah and Please Sir!. Alderton has often starred alongside his wife, Pauline Collins. Hammonds 7 Devonshire Square Cutlers Gardens London EC2M 4YH UNITED KINGDOM Tel: 8708390000 Fax: 08708391001 E-mail: editor@hammonds.com URL URL in full Uniform Resource Locator Address of a resource on the Internet. The resource can be any type of file stored on a server, such as a Web page, a text file, a graphics file, or an application program. : www.hammonds.com Click Here for related articles (c) Mondaq Ltd, 2008 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com |
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