Illegal working civil penalties in the food sector

Huge fines for the food sector:

Between 1 July and 30 September 2023, the government issued £985,000 in illegal worker civil penalties to companies based in London and the South East of England. 47% of these civil penalties were issued to companies in the restaurant and take away sectors who were collectively fined £465,000.

With fines to individual companies as high as £90,000, the impact of employing someone illegally puts a lot of companies out of business. What is it about this sector that makes it so prone to illegal working and companies being penalised?

How civil penalties are issued:

Companies are fined for failing to take the proper steps to prevent hiring someone who does not have permission to work in the UK. Between July and September last year, companies would be issued a penalty of £15,000 per illegal worker for a first breach. This £15,000 penalty could then be reduced in increments if the company have good procedures in place to check a new employer’s right to work.

As of February this year, these first-time breach civil penalties have been increased to £45,000 per illegal worker. That same company that faced a fine of £90,000 would now be fined £270,000 for the same offence.

In some instances, either knowingly employing a person who does not have the right to work or having reasonable cause to believe a person does not have the right to work but hiring them regardless can be criminally prosecuted.

Why the food industry is vulnerable to civil penalties:

The food sector is one that is routinely scrutinised by the Home Office. It is not unusual for immigration officials to arrive at one end of a street lined with restaurants, bars and take-aways and work their way through every building, checking the right to work of all employees as they go. I once even had a client whose food factory was even visited by armed officers supporting an immigration visit.

Restaurants often have a high turnover of staff and branches where the right to work is checked by local managers who aren’t always trained. I’ve worked alongside a major global fast-food restaurant to develop training materials and policies across their branches and helped with double checking right to work for candidates and seen first hand the issues faced by human resources in managing restaurants.

Restaurants are often looking for the best talent for a specific cuisine. One restaurant I represented required a very niche set of skills in their chefs that was only commonplace in a particular region of India. Chefs can be sponsored under the Skilled Worker visa scheme, but the minimum salary threshold is set above the median of the market rate. Currently that minimum salary is £26,200 per annum based upon a 39-hour week but will imminently rise to £38,700 per annum. Hiring chefs will soon become a lot more expensive.

The risks with the restaurant sector centre on policies with regards who is hiring and who is then checking the right to work of new employees, which is where the disconnect often lies.

What can be done to mitigate the risk:

A company can mitigate the risk of civil penalty by having best practice procedures for checking the right to work and assuring that all relevant hiring managers are trained to the same level. The documents then need to be safely stored, either digitally or physically.

Companies should be familiar of what happens in a Home Office inspection and how to be prepared for one. It is always a good idea to take stock and audit your own documents and processes to understand where any remedial actions need to be taken.

Companies should understand who their employees are, which might mean clarifying the position of some members of the workforce.

Our team has great experience with working with restaurants, fast food chains, bars and public houses. We have undertaken mock inspections, reviewed and rewritten policies and procedures and most of all been on hand to provide advice as and when it is needed.

If you have any concerns about your workforce, we would love to hear from you.

This article was prepared by our Head of Immigration, Oliver O’Sullivan who you can reach via email at Oliver.OSulivan@wellerslawgroup.com or by phone 020 7481 2422.