Hi, My name to Prius Linke. I'm embarrassed about one from court chambers in London, specialising in immigration, asylum and national T Long. I am writing this webinar today on civil penalties for employing illegal workers. Now this weapon always aimed at practitioners that working in immigration but also employment law. It's also aimed at businesses, and employees generally aim to cover the lawn illegal working the roles and duties of employers. The consequences of employing an illegal where working for one employer on the roots of challenge that are open to an employer. Illegal working is a growing problem, and it has been for some time on illegal. Where can, if somebody who's subject immigration control who aged over 16 on, they're not allowed to do the work in question. Now, employers have a duty to prevent illegal work by checking that the people that they employ have the light to work here. It's illegal to employ someone who's not allowed to work in the United Kingdom, and employing an illegal worker can result in a fine of up to £20,000 for each illegal worker, or it could result in criminal prosecution in May of 2000 and 14 changes came into force to try to strengthen the scheme and increase the levels of fines up for employing illegal workers. The Immigration Act 2014 also made significant changes to this area, and this WEBINAR aims to engage with those changes and to educate about that. Okay, so let's have a look at the law. This area of law is governed by the immigration and asylum and nationality at 2006 that came into force on the 29th of February 2000. Tonight it's a bit amended by the immigration at 2014. We also have the immigration restrictions unemployment all to 2007 as amended by the immigration restrictions on employment and codes of practice, an amendment all the 2040 within the Honda. I have provided you with the names and the length to a number of documents which are essential for practitioners to look out when dealing with this type of situation. Getting includes a large amount of pain. Office guidance documents, their code of practice, um, Andi. Some links to frequently asked questions on an online interactive tool. Um, I, um, ask practitioners to read those documents carefully where they're dealing with a situation off the civil penalty for employment oven Illegal worker The secretary of state staff I'll supposed to have regard to all of those guidance documents when add ministry in this skiing. If the guidance is not applied properly or indeed it all in decision making, it will be possible to argue that a decision is not in accordance with the law. Okay, so the Immigration and Asylum and Nationality Act 2000 and six reminds a three stage process in looking at the game and civil penalties, So that's as follows. Number one, the U. K. V. I can impose a civil penalty on an employer number tape. The employee can object to the penalty to the civil penalty compliance team. On that I am Objection is an internal review and number three The employer can appeal to the county cult against the civil penalty. So let's start first by looking at civil penalties. Um, Section 15 off the immigration and the following. The nationality at 2006 allows the UK beyond to serve a penalty notice on an employer who employs someone over the age of 16. He was subject to immigration control. You have not got permission to be in the United Kingdom. All has a condition that's attached to that leave that prevents them from carrying out the work that they've been employed for. Under Section 25 of the Immigration and Fun and Nationality Act 2000 and six, employment is defined as follows its employment under a contract of service own apprenticeship, whether express or implied or whether written all it either such important. To carefully consider whether the mock migrant is in fact employed. It will not always be clear whether there is a fat, a contract of employment, So let's have a think about that a little bit further. Consider the following situation. That's a migrant who itself applied. What needs to be considered here is whether they are actually self employed, who's controlling the work of the migrant who supplies the tools. All the equipment for the worker. How are they being paid? You makes arrangements for the individuals, holidays or any saintly capital Where can work for more than one employer at one time? What about a child minder? There's a difference between a nanny and detail minder. The nature of the work of an approved nanny does not meet the criteria for self employed status. What about the situation of an organization who uses an employment agency to find stuff? What needs to be looked at here is whether the stuff found by the agency are then employed by that organization. Who's got control over the employees? Is it at the organization, or is it the employment agency? Just the individual Have a contract with anyone? And if so, who is that way? Is it possible for the worker to have one contract with an end user employer on another with the agency? What about the situation where we've got an employer who is running an employment agency all they introduced in the workers to employers for direct employment off? Are they supplying temporary workers to employers for temporary fine minutes? It can all get quite complicated, So it is important that employers employment excellencies companies take proper advice to avoid the risk of a penalty. Old prosecution employers should ensure that those working on their premises are entitled to work by checking their documents thoroughly. The employees guide to the administration off the civil penalty skiing confirms that if illegal workers are encountered by officials visiting the premises. The employees will be giving in a given an opportunity at that time to demonstrate that they have complied with the law and carried out the necessary document checks. If there's no beach or there's a statutory excuse available implies will be issued with what's called and no action notice on the case will be closed. Now the notice will explain why no action has been taken on the notice will not take it will not be taken into account in the future. That will be the end of that mata. Well, the employer. But if there is considered to be a breach on no secretary excuse, what will happen is a referral notice will be issued within 14 days of the breach to the civil penalty compliance thing. Now that informs them that this case is being spent to the Home Office officials and they will have responsibility for administering scheme. If a referral notice is issued, what will happen is an information request will be sent to the employer, and they will be asked to provide certain details, including confirmation off business details whether documentation checks were carried out for the work is named in the referral, noticed whether the employer reported suspicions about the right to work for any of the workers off on their. We ask for any supporting evidence. The information and the quest may save the level of penalty it will give a deadline for a response on that deadline must be complied with. Following the information request, a decision will be made to issue a no action notice, a warning notice or a civil penalty notice. Certainly one of the three we've already discussed no action notes this. So let's now me want to speak about morning they exist. A warning notice will be issued where the employer has no has not been issued with a civil penalty or a warning notice in the last three years and all mitigating criteria in the code of practice, which are set out in the handout that I provided you with a man. It would explain why the employer is not liable for penalty on state that it is a formal warning and it will be taken into account in the future if there's a breach. If there is a breach within the next three years of that, having been issued. The maximum level level of penalty that that employer could be facing would be £20,000 for each illegal worker. So now moving on to civil penalty noses. So if a civil penalty notices issued, it will have to include the following information line, the employer is liable. Before that, penalty the amount of the penalty now of where this is a first reach. The maximum penalty is 15,000 hair illegal worker. If it's a second or a subsequent breach within a three year period, being a maximum penalty will be 20,000 for each illegal worker at the amount of penalty. The penalty notice will have to say how the penalty have been calculated on whether any reductions have been applied on if they have been applied. It must explain why they have been applied. There will be a day provided by which the penalty must be paid. It will be 28 days after the date on which the notice is sent out, and that's 28 days, after which the civil penalty notice is given. It will set set out whether a fast payment option is available now. The fast payment option reduces be a penalty amount by 30% if it is. If payment is made it full within 21 days of it being do now, that option is not available to an employer. If there have been a breach in the last three years, it would also set out how the penalty must be paid. It will set up how the employees can object to the penalty, and it will also set out how the secretary of state can enforce the penalty now important to highlight the burden is on the secretary of state to show the defense has actually been committed. Okay, so let's now move on and discuss statutory excuses on the section 15 3 off the 2000 and six act. There's an excuse for a foreign employers from paying a penalty if they can show due diligence now what that means if that an employer has to show that that he have complied with the requirements to check the employees documentation I set out in the 2000 and seven older on the code of practice. Now, essentially British nationals e. A nationals on those with indefinite leave to remain need only have their documents chat wants before the employment is commends. Now, be careful. Croatian nationals are subject to different rules and they, for example, must hold the accession worker authorization documents. So what documents must be checked into the ordering code? There are very clear on guidelines as to exactly what must be checked. Andi, we're going to work through these now on employment. Carry out a three stage process in order to avoid the risk of a civil penalty. Now that three stage process is at swallows number one. When quest, the documents that are set out there's to list this. A endless be will go through those lists in a moment. Now, in requesting the document, thing must ask for side of original documentation. Number two. They must take reasonable facts to check that the documents a genuine on that the person presenting the document is in fact the rightful holder of the document on allowed to do in the work being offered. If the document is forged, the fine will only be payable. If the falseness is reasonably apparent, you're reasonably expected to realize that the document in question is not genuine now. Actually, some documentation that is produced it might be impossible for the employees to be able to see that it isn't genuine. In those circumstances, they will probably have a good defense of due diligence. So it's important that practitioners are looking at documentation than Fells when advising on whether or not to statutory excuse might be available. Number three. They must photocopy off scam the relevant pages of the documents in question in the former that cannot later be altered. Copies must be taken of any fund covers of documentation, any pages within the documentation that contains the individual's personal details. Any painters within the documentation that confirmed the persons like to be in the UK on then right to work. Now companies have to be kept for the duration of employment on also for two years thereafter on the dates of the checks have to be clearly recorded by the employer. There's a range of guidance available, which explains how documents should be checked and what the acceptable documentations are. The checks recommended by the Home Office are extremely hurreh on may include checking genuineness, obtaining and copying supporting documents for any changes in name on obtaining and copying details of academic terms and vacation time. time for students. So I said, Well, go to look at least say in this Be to accept perfectible acceptable documents off split into two groups. Let's stay on this. Be the let's first liquor with a document. So this day is a British passport. Permanent residence cards, certificates of naturalizations. So a statutory excuse will be available for the whole duration of the employees employment where those types of documents are in existence. Because holders of the bone document will have no restrictions on the UK on the employer does not have to repeat the right to a check for those for holders of those documents. So again, British passports, permanent residents carped, and those holding certificates of naturalization it can. Let's be so. This is a biometric resident permit, which indicates that an individual have leave to remain or has permission to work. Also, what falls within this category? It's a positive verification natives, which has been issued by the employer checking service now the statue tree excuse in these circumstances will be limited. That is, that old until the expiry. Um, believe all the six months where the individual has a certificate up of application or a positive verification. Notice a math because the employee house restrictions on that permission to be in the UK on that the mission to do the work in question to. In order to retain the excuse, the employer has to carry out a follow up right to work. Check on the section 15 4 off the 2000 and six act. If an employer knows that they're employing in the legal worker, they cannot rely on the defence of having the statutory excuse. If it's established that they held such knowledge that in fact they are likely to be a facing criminal prosecution on the dissection 21 of the 2000 and six that they will not just be facing a civil penalty. They will also be looking at a custodial sentence of up to two years and or an unlimited fine. Okay, so some migrants have conditions attached there leave, which in fact can make compliant by employers very difficult, more complex. So I'm going to now set out a number of scenarios for us to consider on. But I'm also going to have a look at some case or as well, when they were looking at those scenario It's so firstly, what about individuals with a right of abode under the Immigration Act 19 times? That is a k thin the Employment Tribunal case that deals with this situation on its case of its in your hand out in for more detail that I'm going to set out when speaking to you. Important, you have a look at it that makes the quite an interesting read in case of Mr de Bakker Onda Value London LTD. So in that case, an individual appealed against the decision that his dismissal by his employers was fair. Now the individual was a Jamaican national who have the right to live and work in the UK under the immigration. At 1971 he had worked for the respondent for several years as a bus driver and after a workplace old, the employees asked him to produce his passport and evidence of his right to work. He produced his passport, but he was informed by the respondent that, according to the Home Office, it was insufficient evidence of his rights work. And so he was suspended from his work and he was dismissed later on after failing to apply to the Haber this for additional documents, which proved his right work. Now The employment Tribunal accepted that the reason for his work for his dismissal was in a galaxy under the employment rights at 1990 1996 all Sucks l days that there was some other substantial reason for his dismissal the claim and said that they have been unlawful to took deduction from his wages, joining his suspension back with an issue that was not determined by the Employment Tribunal judge because he believed that the employees had actually withdrawn that issue. The individual was not represented. Um, he appealed that decision of the tribunal and his appeal with allows. What was said is that was that the respondent on the employment judge had relied on the immigration and asylum and nationality out 2000 and six and in particular Section 15 which provided for a liability of a penalty if an employer employed a person subject to immigration control. However, the claimant was not such a person because under the immigration at 1971 he did not require leave to enter or remain in the UK even if he had been subjected. Teoh, subject to immigration control section 15 3 did not. Imposing a requirement on an employer to obtain certain documents. It provided the possibility off excuse all from penalty if that the documents were obtained from the employees. Now what was said by the employees employers with that they had made a genuine but makes taking belief that they would be in breach of a duty. Um, but the appeal court rejected that Onda and what ultimately they am sad was that the reasonable off, the reasonableness off their belief in this case, um, was based on their contact with the home office and the u K B I. But if the employees were not able to give any particulars off what they have told, what they had, in fact told the homer this about that individual, they had not been able to give particulars of war. Exactly, was asked on what the precise reply was from the Home office. So whether the employers had given the correct information to the Home Office about whether that individual was somebody who was subject to immigration control was really important on the weight that the Employment Tribunal could place on enquiries that have been made by the employer on the fact that the employees were enabled to produce evidence of having given relevant information to the relevant authorities, all taking reasonable steps to ascertain the correct position. They said, um might have affected the judge's conclusions on the fairness off the decision to dismiss the individual on. As a result of that, the decision was overturned. So it's important where employers are relying on conversations with the Home Office that they take a detail note of exactly what they asked of the home office, what information they obtained off all a better idea is to make enquiries over the phone, used the employees checking service and keep their document records where that has been done. Okay, so let's move on to consider a second scenario. What about student migrants? Consider a student by whom and who's been permitted to work 20 hours per week during term time. What if the student has more than one employer on their working 20 hours per week with one employer on 20 hours a week with another employer? How would an employer check that? If old I would have potentially no ability to say how. How can an employee be sure that a student is in 10 time. Recently, Tesco became stuck with that type of situation and faced large fines for employing illegally. There is now a requirement to take it a copy of academic on determined vacation times. What about research or revision periods granted by investing? It's up 10 time or no. What about recent students, all postgraduate students? All of the things to be considered very carefully, Badly? What about migrant? Who's got an application? All an appeal of administrative review pending with secretary of State Now, that's a very common clear before practitioners. The employer will not be able to check prescribed documents in the circumstances if they're likely to be with the U. K B I or indeed with the tribunal. The full guide and summary guide suggests that a check should be carried out with the e k B. I employ a checking service and that that sort of check is sufficient. A positive verification notice will provide. A statue treats keys for six months for an employer. In those circumstances, I'm going to stop Bell a case here that is in your hand out the case of King Castle Church on OC, accusing another employment tribunal case. Now, in this case, what had happened but was the employment tribunal had awarded compensation to an individual for loss of earnings for a period after which they're leave to remain in the country had, in fact, mm. Expired. Um, So what had happened is that individual had had had been informed that of the u k B I had refused his application for indefinite leave to remain, but, um, he could stay pending the determination off his appeal on the employment tribunal. They failed to make findings as to when his appeal was dismissed on what happened thereafter with his leave. Now, he had failed to comply with the order of the employment of Tribunal Judge to disclose relevant documents. Person between him being maybe I onda, um, one of those documents show that in fact, he had no leave after the 10th of May 2010. Um, on dso, the compensate re award of was sat beside on award was calculated only up to the date that he held leave to remain. It wants the case that in fact, later on, in fact, a year later, after his appeal was dismissed and he succeeded in obtaining family to remain. But there was a period of time for which he waas Anoke Sayer and have no leave and was not permitted to work on DSO in that period. He was rightfully, um, not entitled to. His earnings on bond should not have been water compensation by the employment Tribunal. There is another case as well that it is interesting to discuss. And that's the case of AKI Ammo's and City Facilities Management. Another employment tribunal. Okay, so in this case, there was an individual who waas the spouse of any a national, and what had happened is she had provided a document that showed that she had the right Teoh, um reside in the UK up until the eighth of July 2010. Now she began working in her employment in March of 2010 on she was suspended without pay on in July 2010 when that documentation expired. Now her employees contacted B A u K B I for clarification of her entitlement to work, but the UK beyond was unable to confirm the position. Um and they said to the employees that without appropriate evidence from the individual they would, they would not have a statutory excuse against liability for employing illegal migrant on. As a result of that, she was dismissed on the grounds that she was an illegal worker. A letter was later produced, dated the 16th of August 2010 which confirmed that the individuals actually the family member of You National and so she was entitled to work um On reside in the UK on her pay, was remembers from the 16 of all pissed Onda. The judge concluded that her employment contract WAAS illegal and have failure to present a residence card indicated that she was not entitled to work during the period of suspension between July and August. Now, she appealed that decision successfully because she had always around to resign in the UK at the family member off any a national. She also had the right to work as well as reside Andi. Her rights were not dependent on the issuance of documentation. Onda and the Appeal Court found that what had happened is that there have been a concentration on incorrect matters. Theme judge had been strongly influenced by whether or not be employed to behave reasonably on whether the employer was at risk of penalties if it continued to pay salary on those were in irrelevant considerations, it was said, Um, in fact, they said that the 2000 and six tacked on any reference to it was misplaced because this was an individual who had always had the right to work and reside in the UK. So it does make for interesting reading that could be seen. How employees is kind of vacuum themselves into real difficulties because of the complexities, involvement, individuals and status and rights to work and off course. All of this can be really difficult for employers to work out, particularly where they're getting quite contradictory information from home office than felt. So what about a student migrant who is on a work placement now? The work placement must be a fastest part of their calls, and it's dependent on the student visa that they are in fact, granted, there is a restriction on the period that table students can be on what placements full. Some students are not restricted in the same way. If the placement does not extend beyond more than half the length of the course. What about volunteers? The voluntary activity should not amount to employment or jobs Substitution. Are they getting paid in any way? Are there any contractual obligations on the volunteer on What about asylum seekers? Some of fallen seekers are in fact, granted permission to work on it. You're in a job that's on the shortage. Occupation lists on the guidance states that it will be necessary for employers to use the employers checking service for those individuals. Uh, employers and practitioners in this field should make use of the FBI employees checking service. They're inquest form to request clarification off the person's right to work. I've provided the link to that in the handout employees, Um, practitioners can also make use of response the shape and employees help line again. The number of that has been flooded, and they had out. The burden of proof here is on me employer to show that they carried out the correct checks to establish the difference. Okay, so let's move on to look at the level of penalty. Now. The code of practice sets out detailed guidance on the appropriate level of penalty to be imposed the cones of statutory code, and it's been approved by the secretary of state has been laid before parliament. It does not impose legal obligations on employers. If not a statement of the law, it can be used as evidence of the legal proceedings and courts on Bacon. Take any part of the code into account. So penalties very from a warning to £20,000. I've already stated there are two levels of penalties. Level one is whether on previous breaches in the last three years, the starting point is 15,000 level to where there's been a previous breach. In the three years the starting point will be 20,000. The cake sets out mitigating circumstances and factors that will be taken into account when determining the level of penalty that is to be imposed on an employer. So let's look at those mitigating factors. So number 1/2 the employers reported suspected illegal working to the UK behind. If they can demonstrate that they have reported the suspicion about the right to work for one or more illegal worker who's been identified on, they'd received an acknowledgement. In respect of making such a report in the form of a unique home office reference number, the penalty amount will be reduced for those workers by each about each by 5000. Now to qualify that full of that reduction, they have to have reported that suspicion. I am on the sponsorship unemployment help line before any busy is conducted on that mitigating factor could be taken into account for both level one and Level two breaches have number today. Have they actively cooperated with the U K behind? If they can demonstrate that they've actively cooperated with them when they investigate compliance, the penalty will be reduced by £5000. Preet Illegal Worker Now Active cooperation That will mean providing the Home Office officials with access to premises a recruitment and employment records on their document jacket services. Responding probably honestly and accurately to UK Beyond questions in Information Request making themselves available to officials during the investigation and fully and promptly disclosing any evidence that they have that might assist in investigations. Again. That's taken into account both level and one, and Level two breaches number three. Do they have effective document checking practices in place now? This may mitigating factor is only taken into account for level one reaches. They have to demonstrate that they have effective recruitment practices in place, together with evidence that they have reported suspicion about the illegal worker in question on that they've actively cooperated with being Coby I. So this only applies. Actually, if the former to also applied, uh, and if if they supplies their penalty will be reduced again on day, it will be reduced to the minimum level off a warning notice. It will only apply if they have not been found to be employing illegal workers within the past three years. Andi, in looking at, have whether or not the employer has effective recruitment practices in place, they will look up whether they've got row. Most document chuck checking systems and placed thorough and consistent document checking professes a record of document checks for staff and a history of compliance with the requirements. So we're going to maybe move on and look at a case case cog. Kudos Leisure LTD. On Advocate General for Scotland. Now, in this case, a civil penalty was imposed. It's quite an old case with Mac. Of the civil penalty that was imposed was 7500 for breach of the 2000 and six out. Now, what was said is that the employer ought to have known he'd known, or you want to have known from their records that being employees leave to remain and ability to work in the UK had expired. These were restaurant operators on. They appealed against that decision on what they said was that the individual that they had employed, what the document that he had produced showed that he had lied limited leave to remain on the ability to work until the bird first of August, 2000 and eight on the 23rd of October 2000 and eight and inspection was carried out at their place of work. Andi. They saw the documentation and so that his leave had expired in August off that year, and I searched. They said that he that that they reliable to pay a penalty. Now. The employees said that they had fulfilled their obligations under the code of practice on they maintained up to date records. Now what they said was that they had been given site off and copied a letter that had been issued from the U. K B I would showed that the individual had applied for an extension off their lead to remain. That letter was dated 16th September, 2000 and eight on. They also said that the penalty waas excessive Now their appeal was refused. What was said was that they should have known that believe had expired in August on they'd also felt to obtain the requisite documentation. They said that the check that was carried at the further check, but they carried out of the latter that they obtained that didn't show that that individual had made an in time application to extend their leave to remain. And I such, um, it didn't assess them on the penalty that was imposed upon them. Remain same. So it highlights the importance of making sure that the correct documents are obtained from the individual and really thorough checks are carried out. Now, um, I'm going to just briefly speak about another case. It's a Scottish case. Golden at 90 mash back and Secretary of State for the Home Department. Now it's a 2000 and 12 case, Um, and it involved an individual who was so it was a sole trader and he was married with two Children. Now it's ever fainted. No case in its before this current scheme was bought into place and his personal circumstances and family circumstances were taken into account. And what was said, what's that? There was a comparison between imposing fine as a criminal sentence and prosecuted on the issue that would be looked at by the criminal cults and determining the level of fine. Now, unfortunately, there isn't that sort of flexibility available anymore when I'm arguing about the level of penalty that's been imposed on an individual, so it's no longer the case that an individual can put forward personal family financial circumstances. It is simply those three mitigating circumstances that I set out for you. And then I'll slash out in your hand out. There's another case that I've set out in your handout. It's Muhammad, an advocate general for Scotland. It's a 2017 decision, more reason on deals with the current scheme that's enforced, and it shows that this was an individual who not only did he not comply with providing the information in time, he put forward personal circumstances as an his ability inability to pay on as a reason for trying to reduce the level off. The fine on what we court decided was that he had failed to actively cooperate with B M u K V I and his ability to pay was not something which entitled him to any reduction under the code of practice. So it's a good example of showing how harsh things have become. Under this new scheme under Section 18 off the 2000 and six payment of the penalty can be recovered as a debt in enforcement proceedings. There could be no argument asked a liability for the penalty being imposed. The fact that the employee has statutory excuse to pay or that the penalty level is too high. It's too late by that stage for those types of longing and speed back. Okay, so moving on to discuss objections to the penalty. So under Section 16 of the 2000 and six acts on, employees can object to a penalty in three ways. Firstly, they can say they're not liable to pay the penalty because they're not breach Section 50. Secondly, that it can say they've got to set a statutory excuse under section 15 3 of the 2006 at, and we've been through statutory excuses, and thirdly, they can say that the amount of the penalty is too high. Now there's a prescribed form for objecting to a penalty. It's called the notification often objection to a notice of liability for a civil penalty. Objections have to be raised within 28 days from the date giving the penalty notice. They must give the reasons for objecting clearly and evidence can indeed should be something with the objection where that's possible. The secretary of state will consider the objection with regard to the code of practice, and they will do one of the following within 28 days. Bacon, either a council the penalty be reduced. The penalty see increased the penalty deed maintained the penalty or e issue a warning notice. An objection is now a compulsory step before it appeal is lodged to the county coal. There's an exception to this, and that's where the Home Office increase the penalty following an objection being raised now in those circumstances, being employed has the option of going to an appeal or raising an objection there. They could dispose of the objection in these circumstances and go straight to the appeal. The objection provides a level of internal review trying to an appeal being made against the penalty to the county school. However, practitioners and employers must be mindful of the fact that the amount of the penalty can be increased by the secretary of state on review. They conserve a new noticed with a larger penalty on that simply starts the procedure all over again. The form and the supporting evidence of such has to be completed with absolute care. If the penalties maintained after the objection on the objections been filed on time, the faster payment option will still be available. Where eligible, it is possible to make payments by instalments of well over a period of time. Okay, so what about appealing to the county court under Section 17 off the 2000 and six Alex on employing can appeal to the counterculture after they've used the objection procedure. Now an appeal could be made on three grounds. Number one No liability to pay the penalty of there's been no breach in Section 15. Number two, a statutory excuse from payments of the penalty under section 15 3 All number three in the amount of the policy is too high, be in 2006. Out does not mention permission to appeal to the county court and heart. 52 of the civil procedurals does, but it does not impose a general requirement commission the statutory appeals. In short, an employer does not need permission to appeal in these cases. Part 52 Practice Direction. 52 of the civil procedurals applied to these appeals. They must be complied with. The Helen has do complete form and 161 And that has to be third on the court on the Secretary of State that there has to be served in the government legal department together with the decision that is being appealed on any documents that are relevant to that. Appeal on appeal has to be made within 28 days from the date of giving off the penalty notice all the date of giving the negative decision following the objection, an appeal cannot be made out of time on the court, can not use its powers under the CPR to extend home at this time period is in fact stipulated by the 2000 and six act itself. In reality, this is not an appear on that because the court is not limited to reviewing the original decision to seeing whether there has been an error of law. What really occurs is a full trial of all the issues. So it's a rehearing on the county court. Will we hear the secretary of state's decision to impose a penalty? In doing so, the court will do the following, have regard to the code of practice and look at any other matters on material that it considers relevant, such as employees records, witness evidence. The material before the court does not have to have been available to the secretary of state when the notice was issued. So it's open open to employers to produce of anything else, an additional that they can case management. Direct sections should make perfect vision for the exchange of witness statements, documents and the attendance of witnesses for cross examination. Remember, the burden of proof is on the secretary of state to show about the employees in breach of section 15 of the 2000 and six on, then the burden of proof it again on the secretary of state to show that the level of penalty that's being imposed appropriate, though the employer will have to prove any points that he raises to mitigate that level of penalty on the burden of proof is also on the employees to demonstrate that the statutory excuse applies to them. If that's what they are saying now, remember, the standard of proof is on the balance of probabilities. The court will do one of the following on appeal the loudly peel and counsel the penalty, allow the appeal and reduce the penalty or dismissed the appeal and take no action at all. Now the U K VR are known to settle these cases, and it's important as a result. But the case is put forward very well from start on that strong evidence it may develop and made available to the government legal department from an early Satan proceedings because that will avoid the stress of em. A full hearing that kind should also be aware of the possibility for orders of costs against them if they lose proceedings in the canticle. Um, Andi, I'm going to give you a an example of a case. Global Pay Solutions LTD. On the secretary of state for the Home Department, where a company appealed against the costs older that was made by recorder following its successful appeal against a penalty notice issued by of the secretary of state on the full cases in your hand out. But in summary, what had happened was that company had been issued with a penalty notice and they launched an appeal against that and they said that they were not liable to pay that for a number of reasons. As you'll see from the note for me hand out, they set out their case on bond. It was just before the hearing that what happened was the secretary of state and reduce any evidence onda and fact. In the end, they would. Secretary of State withdrew the penalty notice as result about the opponents for their costs. Onda Recorder said no on didn't order them their cough. They said that they had been an attempt to mislead the court about when relevant documentation have been provided ending proceedings, and it was as a result of that that they were not given their cost, so they appeal. That decision on their appeal was successful, and what was sad in summary by the court was that the secretary of state have been misleading court in saying that they'd only received documents a week before the hearing that in fact been provided with the pumps, noticed the court recorder needed to look at B and conduct of both party than it was clear in this case that this appeal was always is going to be too classical. Onda, the secretary of state, was always not going to be able to defend their decision to issue a penalty notice in this case that ultimately the appeal was allowed on. The secretary of state was ordered to pay the opponent's costs from the original appeal. So there's another example of a case that I've given in the handout that is the case of secretary of state for the Home Department and at Bar. And that is a case that involved the secretary of state actually appealing against the decision of the counter call who had satisfied a civil penalty notice which had been imposed, um, on an on an employer for employing illegal workers. Now the reason why the county courts had and set aside a civil penalty notice was because it had been said that the secretary of state had basically not served papers, in turn felt failed, Teoh said. Their evidence failed to file a trial bundle not arranged attendance off the officers that have been requested. The secretary of state had been appealed. That decision to the court of appeal and that was in fact the first time that that sort of decision had been appealed by the secretary of state to the court of Appeal. So festival the court looked at whether or not they have jurisdiction to actually look at that type of appeal, and it was found that they did. But second of all, they went on a looks at the matter substantively. And they said that the county court had simply gone ahead ultimately and agreed with the employers about the secretary of state not having complied on DNO, having served documents and not producing officers. Whereas if being court had looked at matters properly, what they would have seen with that they had been failings on both sides on the reason why officers were not requested with that. In fact, at one stage it was thought that matters could be dealt with but by the papers entirely. So ultimately, the case was set sent back down to the county court to be re determined. It means for quite interesting reading. Naturally. So do read that because it gives them insight into how county court hearings are conducted that they are full rehearing of matters on gives some good grounding and looking at procedure as well. So, um um, look moving on to go look to look at enforcement now, As I've said, if the penalty is not paid in full or an objection or appeal is not made in time enforcement, action will commends to recover the penalty. Now that can have an adverse impact on the employee's ability to obtain credit, all wrapped in the capacity of the director in a company. If they're employed the migrant, the penalty will be taken into account when looking at future applications that they make. If the employees a sponsor, the civil penalty could impact on upon it sponsor life to mean that it's taken away from them. So race discrimination Finally, under Section 23 of the 2000 and six select reference is made to the waist relations legislation. It's illegal for an employer to discriminate on the grounds of race, color, ethnic or national origin or nationality. The best way to ensure that an employee does not discriminate is to treat all applicants in the same way at each stage of the recruitment process. In other words, they should carry out document checks on old perspective employees and not make assumptions about a person's right to work in the UK based on their background appearance on their accent. Okay, so that's been quite a full webinar. I hope that you've gained something from it aside, said the nose. They provide a lot of information as well. I have also. It's multiple choice questions for you to you answer on guy. Thank you for your time and listen to me today.
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