Hiring a non-British household employee without carrying out the necessary checks could take you to the cleaners
At the beginning of the year, former immigration minister Mark Harper resigned from the government when his Colombian cleaner was found to have no permission to work in the UK.
More recent reports have revealed that Harry Potter star Emma Watson is under investigation by immigration officials for unlawfully employing her American housekeeper in her London home while she was on a tourist visa. Tourist visas do not allow non-British citizens to work in the UK and this could result in a hefty civil penalty of up to ’10,000 for the actress.
The penalty in recent months has increased which means that Home Office officials, from 16 May 2014, can impose a maximum penalty of ’20,000 if an employer is found to be employing non-British nationals who do not have the correct right-to-work documents in place.
Considering this, HNW households in the UK need to be mindful of work restrictions on foreign housekeepers, maid or cleaners. The guidance below will assist you in fulfilling your legal duty as an employer and help you to be protected from a potential fine.
What do you need to do when employing foreign national housekeepers/cleaners?
> Establish whether your worker is an employee or self-employed.
> If they are an employee, ask for and check their right-to-work documents in their presence.
> Make copies of their documents, date them and retain them for your records.
> Record the expiry of their visa and do not employ them beyond this date unless they provide a new updated document.
What is the difference between your worker being your employee or self-employed? The answer to this question is central to determine whether you need to complete a right-to-work check in the first instance. If your cleaner is your employee you will need to carry out appropriate checks before they can work for you. If, however, your cleaner is self-employed then there is no need to carry out any such checks.
There are a number of factors you must consider to establish whether your worker is employed or self-employed. However, if you are uncertain at all then it is best that you complete the required immigration checks to avoid being liable for an unnecessary penalty, or seek independent legal advice.
The following questions will assist you in determining whether your worker is an employee or self-employed:
1. Does your worker carry out the services themselves (employee) or do they have a right to provide a substitute or use their own helpers (self-employed)?
2. Do you control what tasks need to be done, when and how the work is done and where these will be performed (employee) or will your worker decide their own tasks to be completed and how to carry them out (self-employed)?
3. Do you provide the equipment required to complete the job (employee) or does your worker provide their own equipment (self-employed)?
4. Does your worker get paid by the hour, week or month and receive overtime (employee) or do they invoice you for the work they do (self-employed)?
5. Do you arrange holiday and sickness absence (employee) or does your worker make their own arrangements (self-employed)?
6. Can your worker do the same type of work for more than one employer at the same time (self-employed)?
Tijen Ahmet is an Immigration Solicitor at SA Law LLP