Employing staff from overseas

Hairdressing skills are so transient that stylists and colourists can potentially work anywhere in the world. However, it’s not always as simple as just filling a vacancy with a talented worker from outside the UK. There are certain regulations that control the employment of overseas workers. Make sure you have enough knowledge so you don’t employ someone you shouldn’t.Can I Employ Workers From Overseas? This will depend on the nationality of the worker. Can I Employ Any Workers From Europe? European Economic Area (EEA) nationals can work in any country in the EEA and receive the same rights as that of a member state’s own citizens. Any nationals of the EEA who wish to work in the UK for more than a month have to be registered on the Worker Registration Scheme. See www.workingintheuk.gov.uk for a list of EEA countries. What About Non-EEA Workers? Non-EEA nationals must obtain work permits. There are certain categories of workers that do not require work permits. These include:

• business visitors
• Commonwealth citizens who have been given leave to enter or remain in the UK
• Commonwealth citizens with a parent who was a British citizen and have the Right to Abide in the UK
• those with indefinite leave to remain in the UK
• those admitted to the UK for a period of at least 12 months as students
• those who do not have any other conditions attached to their stay in the UK.

Which Workers Are Eligible For A Permit? Permits are normally issued only in respect of individuals who have the following specified skills:

• a UK degree-level qualification (or equivalent)
• a HND-level occupational qualification (or equivalent)
• a general HND-level qualification (or equivalent) plus one year’s work experience in the type of job for which the permit is sought.

The eligibility of a worker will also often depend on the type of employment sought. The eligibility differs within each type of employment. Is It The Employer’s Responsibility To Get The Permit? If an employer wishes to employ a foreign national he/she must first apply for a work permit on the worker’s behalf. There are two main types of application: Tier one and Tier two. Tier one Tier one applications can be used if the post meets the skills criteria and one of the other following applies

• intra-company transfers: an employee of a multi-national company is transferring to a skilled post in the UK
• the post is at board level
• the post is new and is essential to inward investment
• the post is an occupation recognised by the Work Permits Agency as being in short supply.

Tier one applications do not need supporting evidence and need not be advertised in advance. Tier two Tier two applications are standard work permit applications requiring proof of qualifications and experience, evidence of employment history and details of recruitment search. Do I Have To Prove That I Can Not Get Any UK Workers To Do The Job? If the Tier two application system is used, an employer must:

• consider carefully whether the vacancy can be filled by the promotion or transfer of an existing worker
• advertise a vacancy in local, national and/or EEA press and in appropriate trade and professional journals
• send copies of any advertisements with the application for the permit giving full details of the results of the advertising.
Can I Employ Asylum Seekers? An asylum seeker must apply for permission to work from the Home Office. What Happens If I Do Not Obtain The Necessary Work Permits? It is a criminal offence to employ a person who is subject to immigration control and does not have permission to live or work in the UK. What Checks Do I Have To Make? An employer has a defence if they check that the potential employee is in possession of one of a range of documents such as a UK passport, a documented National Insurance number or a letter from the Home Office confirming that the person is allowed to work. Is There a Danger of Racial Discrimination? Under the Race Relations Act it is unlawful for any employer to discriminate on grounds of race, colour, ethnic or national origin or nationality. If you refuse to consider anyone who looks or sounds foreign this is likely to be unlawful discrimination. You may not assume that a foreign national has no right to work in the UK. What Records Do I Have To Keep? You must follow three steps to ensure that your obligations as an employer are met:
• Ask to see the relevant documents listed above
• Satisfy yourself that the documents are rightfully held by your employee
• Take copies or scans of documents.
What Are The Consequences If I Break The Rules? Any prosecutions will be dealt with in the local Magistrates’ Court and you could be fined up to £5,000 for each person illegally employed. Lisa Forsyth is a trainee and Jonathan Exten-Wright is a partner in the employment department of international law firm DLA Piper UK LLP