Employers of migrant workers should be alert to illegal employment practices
The construction, food, hospitality and agriculture industries all lend themselves to the employment of migrant workers. The work given to migrants is often unskilled and only offered on an irregular basis. This very irregularity makes it especially important for employers to ensure that proper recruitment systems are followed at all times. They must take care that contracts, working practices and the way potential employees are introduced to the company, are both legal and ethical.
Scam
The recruitment and use of migrant labour is increasingly affected by so-called ‘cash for jobs’ scams, also known as ‘employment’ scams. This is a type of fraud in which migrant workers are encouraged to make payments to a third party to secure a job or to guarantee they get offered one. In some cases, where the worker is from outside the EU, such payments could ostensibly be required for visas or other presumed travel expenses, in order to secure employment. Such arrangements are illegal. Responsible employers must stay vigilant and be prepared to root out scams of this nature or risk significant reputational damage and potential loss of business.
Reputation
If an employer identifies a ‘cash for jobs’ scam within its workplace, it must deal with it both from a human resources and legal perspective. Both the courts and customers will want to see that such matters are being handled with transparency and that migrant workers are being treated fairly. It is not acceptable for migrant workers to be made to feel they have to make these payments to a third party just to stay on the books of their employer. Failing to spot such scams, or take action to stop them, could have a damaging effect on the company’s corporate reputation.
Any suggestion that the employer may condone such unethical and illegal practices could lead to the loss of key customers. It could also lead to employee unrest and even potential strike action in unionised workplaces. Of course, there is also the risk of a police investigation and criminal proceedings if the employer is found to have been doing something unlawful.
Investigation
If employers suspect that a ‘cash for jobs’ scam exists in their workforce, they should follow standard legal practices for dealing with such matters and inform the police if they suspect criminal activity. They should carry out an internal investigation, and if individuals are found to have been carrying out fraudulent behaviour, which has the potential to bring the company into disrepute, evidence for dismissal on the grounds of gross misconduct should be gathered. Evidence provided by other employees could be crucial to the investigation but their anonymity must be protected, particularly if there is a risk of reprisals. This will be key to encouraging witnesses to come forward. In a recent example of a situation where this kind of fraudulent activity was alleged, those investigating refused to provide witness names even at the tribunal. They were only prepared to show them to the judge presiding. Taking extra care to protect the identities of witnesses in this way will help to promote an open door culture and this could be useful if the need for future investigations arises.
Advisors
While HR departments should be well equipped to carry out an internal investigation and dismissal proceedings if necessary, the special sensitivity and potential repercussions inherent in a ‘cash for jobs’ scam requires extra care and an independent viewpoint can be helpful. Where possible, employers should use external experts to lead internal investigations, particularly when assessing the extent of any activity of this type within the business. The use of such advisors will help to minimise the risk of reputational damage and employee unrest. The financial implications of carrying out such investigations and rooting out illegal recruitment practices will be much less costly to the business in the long run.
Vanessa Di Cuffa is an employment law partner at Shakespeares
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