Important changes to TUPE transfers
August 2008
New guidance from the UK Border Agency (an Agency of the Home Office) is that Employers who have taken on employees as a result of a TUPE transfer have a grace period of 28 days in which to ensure that the employees are not illegal workers.
The UK Border Agency has reviewed the arrangements regarding the employer’s obligations to check whether individuals have the right to work in the UK in the event of a TUPE transfer.
Increased penalties were introduced in February 2008 for employers who employ individuals who do not have permission to work in the UK. The penalty for negligently employing an illegal worker is a fine up to £10,000 for each individual illegally employed and, where an illegal worker is employed knowingly, the penalty is a two year prison sentence and/or an unlimited fine.
If an employer can show that it has carried out relevant checks in order to establish the eligibility of an individual to work in the UK as specified in the Immigration, Asylum and Nationality Act 2006 then it will have a defence to the offence of negligently employing an illegal worker.
Previously, in the case of a transfer of a business to which TUPE applies, the checks carried out by the transferor could be relied on by the transferee for this purpose.
However, following the review by the UK Border Agency this is now not the case. Their guidance for employers on preventing illegal working states that employers who acquire staff as a result of a transfer to which TUPE applies are provided with a grace period of 28 days in which to carry out the appropriate document checks for the purposes of establishing whether there are any illegal workers in the business.
This is an important change for employers who take on employees as part of a TUPE transfer. Employers should ensure that within 28 days of the transfer they have carried out their responsibilities under the Immigration, Asylum and Nationality Act 2006 to ensure that there are no illegal workers and in order to give themselves a defence to the offence of negligently employing an illegal worker.
For more information visit www.businesslink.gov.uk.
Return to category: Newsletter: Brilliant News - August 2008