Foreign workers: Be a responsible boss

Visit any building site in the UK and a number of the workers will probably be from overseas. In 2010, the Health and Safety Executive (HSE) reported that foreign or migrant workers made up about 6% of the workforce in the construction industry with that number rising to more than 25% on larger sites in the bigger cities such as London, Birmingham and Glasgow.

Notwithstanding the freedom of choice that exists in today’s job markets, there are a number of common legal pitfalls which businesses should avoid when employing or engaging workers from overseas.

One of the first questions to ask when employing someone is whether they have the right to live and work in the UK. Businesses employing illegal workers can be fined up to £10,000 per illegal worker and, if the person hiring them knew they were illegal workers, they personally face an unlimited fine and up to two years in prison.

It is therefore essential that you carry out the proper document checks on your employees to ensure they are entitled to live and work in the UK. Provided you have the appropriate record for these checks, you should not be fined or sentenced if you inadvertently employ an illegal worker. Document checks should be carried out on all employees, not just those with “foreign sounding” names, to prevent discrimination claims - don’t assume that just because someone looks “British” or “European” they are safe. The UK Border Authority’s website (www.ukba.homeoffice.gov.uk/) has more information on the prescribed document checks.

As there are often arguments about their employment status, businesses should ensure that document checks are also carried out on all agency workers, subcontractors and self-employed workers, and that appropriate indemnities against fines and liabilities are included in any agreements relating to their appointment or hire.

Another factor that employers should be aware of is guarding against race and religious discrimination claims.

“Choice” language and dodgy jokes may not be unusual on building sites, often at other employees’ expense. However, when workers have different cultural and racial backgrounds, what may seem like harmless banter can be fertile grounds for harassment claims. It is extremely difficult to draw a line between “a bit of fun” and discriminatory harassment, particularly as the law takes into account the subjective views of the individual who claims to have been harassed.

If an employee harasses a worker during the course of their employment, their employer will ultimately be liable unless it has taken “reasonable steps” to prevent harassment. It is therefore important to have adequate anti-harassment policies and procedures in place, and to give employees appropriate training.

Businesses may also find they are unintentionally unlawfully discriminating against foreign workers by applying a provision, criterion or practice (PCP) consistently across the workforce which indirectly discriminates against a protected group. Indirect discrimination can be justified, in which case it is not unlawful, if it is demonstrated that the PCP is a “proportionate means of achieving a legitimate aim”.

For example, job specifications that require workers to hold UK qualifications or speak English to a certain level are likely to be discriminatory unless it can be justified in the context of the particular role. Is the requirement really necessary or will equivalent foreign qualifications suffice?

The HSE has found that foreign workers can be at greater risk of accident or injury than UK-born workers due to poor or limited English language skills, inexperience or lack of understanding of UK health and safety standards.

Health and safety training for foreign workers is therefore key to fulfilling the employer’s duty of care. The Construction Skills Certification Scheme (CSCS) card can be taken in a variety of languages or with the help of an interpreter (for languages where there is no automated voiceover).

Various web-based materials are also available to help integrate overseas workers into the industry. Other steps to limit the risk of accidents include using multi-lingual supervisors and translating instructions, signs, policies and procedures into the workers’ first language.

The main thing to consider when employing foreign workers is whether your business is doing enough to mitigate potential risks.

Simon Anderson is a construction and engineering partner, Jo Tindall is an associate in the employment group and Stephen De’Gionvanni is a solicitor in the employment group at solicitors Walker Morris