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Business update: Beware illegal working practices

Common working practices are putting UK pharmacies at risk of Home Office penalties for illegal working, as immigration solicitor Anne Morris explains

Key facts

  • Pharmacy employers are required to comply in full with UK immigration rules
  • Effective record keeping is a key priority
  • Particular issues relate to Tier 2 pharmacists’ salary payments and working patterns

 

Whether you are operating a chain of pharmacies or a smaller independent business, you are legally required to comply in full with UK immigration rules. Otherwise, you could be at risk of fines and penalties for illegal working.

Across the pharmacy sector, a number of working practices are coming to the attention of the Home Office, resulting in enforcement action. Proactively identifying and addressing these issues can help you avoid Home Office scrutiny for noncompliance.

Tackle organisational inconsistencies

One of the biggest compliance challenges for businesses with multiple branches is ensuring consistency across the network.

Investment is made in an HR and compliance infrastructure, but implementation can sometimes fall short if there are huge differences in working practices across a company. While some branches might be very organised, others may be operating below the required standard.

Local management discretion also presents a risk where decisions made at branch or regional level do not comply with company policy and as such are in breach of Home Office regulations. In these instances, it would be difficult to challenge any allegations of illegal working. Without exception, every branch in a company’s UK network has to meet the same high standards for immigration compliance.

Regular audits and compliance spot-checks are extremely useful in identifying weaknesses. Waiting for the Home Office to do it for you will be a costly exercise.

Keep up your record keeping

Effective record keeping is a top priority as the Home Office relies heavily on employer documentation for immigration enforcement purposes. However, in practice, employers do struggle to meet the required standards, from copying and retaining ‘right to work’ documents in the correct manner to updating the Sponsor Management System (SMS) if you are a sponsor licence holder.

As a licensed sponsor, the Home Office expects your SMS information to be a snapshot of your business at any one time. This means updating the information with relevant changes relating to migrant workers and the company, such as opening a new branch.

Another area of risk relates to leavers’ personnel records. The Home Office has the right to request employee documentation for up to two years after an employee has left your employment. We are seeing a lot of instances where records have been deleted or destroyed before this date. This is not accepted practice and is regarded as a breach of your ‘right to work’ duties.

Check that salary means salary

The Home Office has the ability to cross-reference the information it holds with individuals’ HMRC records. This is providing unprecedented quality of intelligence, which is in turn leading to more informed immigration investigations.

One particular issue in the pharmacy sector relates to Tier 2 pharmacists’ salary payments. (Tier 2 pharmacists are those working in the UK who are neither British nor EU nationals and who are here working on a Tier 2 visa. Employers must have a sponsorship licence to be able to employ them).

Home Office investigations have been revealing employers routinely deducting visa costs and other recruitment expenses from employees’ salaries, which is in breach of both immigration rules and employment law legislation.

Sponsorship licence conditions

Sponsorship licences are highly prescriptive in specifying what sponsored workers can and cannot do under their visa, covering, for example, working hours, location and duties. This can often render reasonable and accepted working practices non-compliant. Should the Home Office arrive for an unannounced inspection and find any sponsored employees present and working outside of their permission, this would be considered grounds for enforcement action.

For example, sponsored employees can only carry out tasks that correspond directly to the job description and the assigned ‘SoC’ code. A Tier 2 pharmacist lending a hand to unpack stock cages would, in all likelihood, be deemed a breach.

While it may seem pragmatic to ask staff to work in different branches, perhaps acting as relief, ensure that any sponsored employees are in fact permitted to do this, as they are only allowed to work at the branch(es) specified under the licence.

Similarly, working hours must reflect the licence-approved working pattern. Significant and consistent overtime working would be considered noncompliant. Working hours and locations can be amended on the SMS, but this has to be within the code of practice as per the original Tier 2 requirements. Proceed with caution or take advice.

Compliance matters

As an employer, immigration compliance duties can be onerous, but the penalties for breaching them – such as a suspended or revoked sponsor licence and fines of up to £20,000 per illegal worker – are sufficiently severe to warrant a commitment to ongoing compliance.

The fundamental requirement is to make immigration compliance part of everyday business operations by understanding what an employer’s duties are and ensuring working practices and processes meet Home Office standards throughout the organisation.

Anne Morris is managing director of DavidsonMorris, specialist immigration advisers to UK pharmacies across all aspects of immigration compliance, sponsor licences and civil penalties.

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