Don't allow the working holiday

There have been reports recently that City banks and financial institutions are illegally employing thousands of working holidaymakers from South Africa, Australia and New Zealand. With the current shortage of solicitors in some disciplines, there are concerns that law firms may be doing the same thing.

Working holidaymakers are Commonwealth citizens between the ages of 17 and 27 who have come to the UK for up to two years on the understanding that they intend to take "employment incidental to a holiday" and do not intend to "pursue a career" here. The Home Office says that this means that working holidaymakers cannot take full-time work for more than half of their stay in the UK, and that managerial and professional jobs are completely ruled out, even for short periods.

Working illegally is risky for the individual concerned, who may be prosecuted and removed. It is also an issue for employers as a result of the Asylum and Immigration Act 1996, which makes it an offence to employ anyone who does not have the correct permission to work in the UK. The only statutory defence is for the employer to have checked and copied one of a specified number of documents before the person started work. The Labour party was opposed to employer sanctions when they were introduced by the Conservatives, but the present government has decided to keep them because, it says, it has found no other effective way to fight rogue employers. In fact, it is enforcing employer sanctions enthusiastically – warnings are up.

Some working holidaymakers describe themselves as self-employed and set up their own companies to avoid having to go on the payroll of an employer. An employer will not be able to rely on this arrangement as a defence if a court finds that the individual is, in reality, an employee. Similarly, employers sometimes believe that they are protected if the individual came to them through a recruitment agency. This is true if the person genuinely remains an employee of the agency, but otherwise the employer will be liable if it did not copy one of the specified documents before the individual started work.

What should a law firm do to avoid employing working holidaymakers illegally? The obvious starting point is to find out the immigration status of anyone who the firm intends to employ. Technically, the employer is not liable if it did not know that the person did not have permission to do the job and it checked a specified document, such as an Inland Revenue document, which did not make the position clear.

However, if the person is a working holidaymaker this will usually be evident from their CV or will come out at interview, and law firms should not operate a "don't ask, don't tell" policy.

Having established that someone is a working holidaymaker, the next step is to consider whether they are allowed to do the job. As mentioned above, any professional job (which obviously includes working as a solicitor), is not permitted. Working as a paralegal is a grey area, depending on the level of the job and the previous experience of the working holidaymaker. A qualified lawyer might be allowed to take a temporary job as a junior paralegal, but a recent law graduate could be viewed as "pursuing a career" by doing the same thing.

Assuming that the job is of the type which the working holidaymaker is allowed to take, the firm may have to carry out more checks. If it establishes a defence to employer sanctions by copying the person's passport, it should also check how long the person has been in the UK, how much of that time they have already spent in full-time work and how much longer they intend to stay in the UK.

The Home Office says that these checks are only required if the employer uses the passport as a defence, so it is possible to avoid having to carry out these checks by specifically asking not to see the person's passport, but again, law firms would not want to be seen to be dodging the issue in this way.

If a law firm is determined to take on a working holidaymaker as a solicitor or in another career-type position, there is only one solution – a work permit. Whether it is possible to obtain a permit will depend on the job and how the person was selected, but to go ahead and employ the person without one is, quite simply, criminal.