Restaurant owner sees Premises Licence Revoked for employing an illegal worker

Last week the High Court dismissed an appeal by a restaurant owner following the revocation of his Premises Licence under the Licensing Act 2003.  The decision could be applied in similar cases where the review of a Premises Licence is brought under the Gambling Act 2005, as both Acts share a common objective – the prevention of crime.

When immigration authorities carried out a raid on a restaurant in East Lindsay operated by Mr Hanif and discovered that he was employing illegal workers, the Police brought a review of the premises licence under the Licensing Act 2003 and ELDC licensing authority revoked it.

On Appeal Mr H argued that he had not been prosecuted for employing an illegal worker under section 21 of the Immigration, Asylum and Nationality Act 2006, but had instead been given a civil penalty under section 15 and therefore the crime prevention objective set out in the Licensing Act 2003 was not triggered.

However, in the absence of any evidence to the contrary it was concluded that Mr H not only failed to check for paperwork proving the worker’s right to work in the UK, but had not paid the worker at least the minimum wage, had failed to keep or maintain PAYE records or submit returns to HMRC.

The Court ruled that the Council’s decision to revoke the licence was appropriate as it could be inferred that Mr H knew that he was employing an illegal worker, who was in a vulnerable position and that he had taken advantage of the situation to been exploit the worker as well as defrauding HMRC.

The decision clarifies an important point that has been argued at a number of Licence Review hearings in the past, and is likely to be applied to reviews of other licences issued under other legislation including the Gambling Act 2005.

Employers should ensure that they see and take copies of original documentary evidence of a potential worker’s right to work in the UK.  If necessary they should also use a Right to Work Screening agency to verify the documents.  Any limit on permitted hours of work or where a right to work is only temporary should be recorded and reviewed when necessary.  Finally Employers should ensure that contracts of employment include a right to terminate the contract immediately in the event that an employee is no longer entitled to work in the UK.

22 April 2016



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