21 Dec Illegal Worker Case & Data Protection
Recently I acted for an education provider. They had received a notice for illegal working with a civil penalty warning attached. It was alleged that in and around 2007 some 10 years ago, they had employed an illegal worker. It was being put to the employer that this employee had a fraudulent indefinite leave to remain stamp and thus the Home Office position was they were entitled to investigate the illegal working that had occurred in 2007 and impose a fine if no defence was forthcoming.
Interesting point that arises – if an employee that has left your employment some 9 years ago and the employer has destroyed their HR records because of the passing off time – Are you liable for such a fine? Is this time barred?
The Data Protection Act stipulates that data and records should only be stored for as long as they are useful, so it’s up to the employer and their HR policy to determine how long those records are useful for. Different records may also need to be disposed of at the different times.
In this case, we were acting for a charity and fortunately, they had not destroyed this employees file. Fortunately, we were able to point the relevant documentation and the fine was avoided to show that they had inspected relevant documentation at the time of the employee’s employment.