Recruitment Preventing Illegal Working Without Discrimination

Hardly a day goes by without there being some mention of illegal immigration in the news. The number of people discovered working in the UK unlawfully has risen sharply in recent years.

There has been much talk of the possible introduction of national identity cards, but these are not likely to come in for some time.

For employers, the important issue when recruiting is how to avoid committing a criminal offence under the Asylum and Immigration Act 1996, by taking on someone not legally entitled to work in the UK, without falling foul of the Race Relations Act 1976, under which it is unlawful for an employer to discriminate on grounds of race, colour, ethnic or national origin or nationality.

An employer who employs someone who does not have permission to live and work in the UK can be fined 5,000 in respect of each person being employed illegally.

Any person who believes they have been discriminated against on racial grounds has the right to take their case to an industrial tribunal. If their complaint is upheld, there is no upper limit to the amount of compensation the employer can be ordered to pay.

There is a Code of Practice, issued by the Government, to help employers comply with both laws. Here is a summary of the guidance. A full copy of the code can be found on the Home Office website ( www.homeoffice.gov.uk ) under Immigration and Nationality, Employers' Information.

To be sure someone has the right to work in the UK and to establish a defence against possible prosecution you should ask a potential employee to provide an original document from a specified list. Examples are:

• A document which gives the applicant's National Insurance (NI) number and name, for example a P45 or NI card;
• Evidence that the applicant can stay indefinitely in the UK , or has no restrictions preventing them from working, such as an endorsement in a passport;
• A work permit or other approval to take employment, issued by Work Permits UK ( part of the Home Office's Immigration and Nationality Directorate);
• Evidence that the applicant is a UK citizen and has the right to live in the UK , such as a passport, birth certificate or naturalisation document;
• Evidence that the applicant is a national of a European Economic Area country, such as a passport or a national identity card.

A complete list of specified documents can be found in the Code of Practice.

If you have any doubts as to whether a document is adequate for this purpose there is a special helpline to deal with enquiries on 0208 649 7878.

The best way to make sure that you do not discriminate is to treat all job applicants in exactly the same way at each stage of the recruitment process. Have clear, written recruitment procedures and check regularly that they are being followed. An employer can be held responsible for discriminatory action by employees, if they do not take steps to prevent it happening. You should:

• Ask everyone if they need permission to work in the UK and ask all applicants for one of the necessary documents.
• Don't insist on seeing a particular document. You don't have to see the NI number. All documents are of equal value.
• Don't assume that a foreign national or an applicant from an ethnic minority has no right to work in the UK.
• Don't assume that a person is an illegal worker if they can't produce one of the relevant documents. Suggest they go to a Citizens Advice Bureau for advice on what to do.

 

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.