Emma Harris has succeeded in having a Civil Penalty Notice cancelled on appeal for her client who was accused of employing an illegal worker.
His Honour Judge Murch, sitting in the County Court at Luton, agreed with Ms Harris’ submission that it is the Secretary of State who bears the burden of proving both that a person has been employed and that that person had no legal right to work in the UK at the relevant time.
The Judge also agreed that ad hoc and casual work arrangements do not constitute employment and that the Secretary of State must prove that there has been a contract of employment, including mutuality of obligation, between the employer and employee in line with the well-known employment case law of Autoclenz Limited v Belcher [2011] UKSC 41.
Finally, the Judge agreed with the submission that the applicable Code of Practice for determining how a penalty will be calculated is determined by the commencement date of any employment. A breach of the Code was found not to be a new breach on each day that an employee works illegally. The relevant date is therefore the first day of employment and not the date on which a person is encountered working illegally.
In this case, the Secretary of State was found not to have discharged the burden of proving that the client had employed an illegal worker and the penalty was therefore cancelled. The Judge noted that even if the Secretary of State had succeeded in proving employment, the employment would have commenced before the introduction of the latest Code of Practice on 13 February 2024 (when the starting point for calculating penalties was increased from £15,000 for a first offence to £45,000 per illegal employee) and any penalty would therefore have been significantly reduced in any event.
Emma’s client was delighted with the outcome, not only because the penalty was cancelled and they were awarded their costs but because they also no longer face having their business’s reputation materially damaged by the publication of their details.
Related barristers: Emma Harris
Related practice areas: Civil
