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One Right Can Make A Wrong: Preventing Illegal Working Without Discriminating

One Right Can Make A Wrong: Preventing Illegal Working Without Discriminating

As an employer you will probably be aware of your duty to carry out checks (before and during employment) to ensure that, if your workers need it, they have valid immigration permission to work in the UK. Whilst the focus of such checks tends to be on compliance with immigration law, it's worth remembering that the manner in which such checks are carried out could expose you to employment claims.

I regularly hear of employers who only carry out right to work checks against those employees they perceive to be non-British or European, on the basis of their colour or name, for example. Whilst this approach is taken without malice, the reality is that such employers are potentially exposing themselves to claims of unlawful discrimination. And it’s possible that such a selective approach allows individuals who do need immigration permission to fall through the cracks. If an Employment Tribunal upholds a claim of race discrimination there is no upper limit on the financial compensation an employer can be ordered to pay. Coupled with the fact that the penalty for illegal working has doubled to £20,000 per illegal worker (as of 6 April 2014), this could be a costly mistake for employers. It is all the more important that employers have good procedures in place, and staff appropriately trained on them, to minimise such risks.
As a timely reminder of these risks, and best practice, the Government has published a draft Code of Practice for employers on how to avoid unlawful discrimination whilst preventing illegal working. A copy of the code can be found here [ADD HYPERLINK] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/300001/Draft_Code_of_practice_for_employers_to_avoid_discrimination_V2_0.pdf
The Code gives some practical tips on how to avoid discrimination when preventing illegal working:
- Have clear and consistently applied recruitment practices, based on equal and fair treatment of all candidates (those procedures should be accessible by all staff)
- Select candidates on the basis of suitability for the post and do not discourage or exclude candidates on the basis of their appearance or accent, for example
- Carry out right to work checks before employment commences (and repeat during employment if the individual has time limited permission)
- Carry out right to work checks against all prospective employees (regardless of their perceived nationality or circumstances)
- Monitor the diversity of all candidates during the recruitment process
- Do not treat employees with time limited immigration permission less favourably than others, for example in the terms of their employment, opportunities for training, promotion, benefits or by being dismissed or subjected to a detriment. They should be treated the same way as other employees
- Do not assume that individuals unable to produce acceptable documents are in the UK illegally. Best practice would be to keep the role open for as long as possible to enable them to demonstrate their right to work (although this may not always be feasible from a business perspective)
Once approved by the Secretary of State, the final version of the Code will have statutory force and may be taken into account by courts and tribunals. It will apply to all employers, regardless of size, in Scotland, England, Wales and Northern Ireland. The exact date from which the Code will apply has not yet been confirmed, although it is expected to be later this month.
If you would like to discuss the right to work checks that should be carried out or the interface with employment law please get in touch.
Joanne 

I regularly hear of employers who only carry out right to work checks against those employees they perceive to be non-British or European, on the basis of their colour or name, for example. Whilst this approach is taken without malice, the reality is that such employers are potentially exposing themselves to claims of unlawful discrimination. And it’s possible that such a selective approach allows individuals who do need immigration permission to fall through the cracks. If an Employment Tribunal upholds a claim of race discrimination there is no upper limit on the financial compensation an employer can be ordered to pay. Coupled with the fact that the penalty for illegal working is due to double to £20,000 per illegal worker (expected to take place in May 2014), this could be a costly mistake for employers. It is all the more important that employers have good procedures in place, and staff appropriately trained on them, to minimise such risks.

As a timely reminder of these risks, and best practice, the Government has published a draft Code of Practice for employers on how to avoid unlawful discrimination whilst preventing illegal working. A copy of the code can be found here.

The Code gives some practical tips on how to avoid discrimination when preventing illegal working:

  • Have clear and consistently applied recruitment practices, based on equal and fair treatment of all candidates (those procedures should be accessible by all staff)
  • Select candidates on the basis of suitability for the post and do not discourage or exclude candidates on the basis of their appearance or accent, for example
  • Carry out right to work checks before employment commences (and repeat during employment if the individual has time limited permission)
  • Carry out right to work checks against all prospective employees (regardless of their perceived nationality or circumstances)
  • Monitor the diversity of all candidates during the recruitment process
  • Do not treat employees with time limited immigration permission less favourably than others, for example in the terms of their employment, opportunities for training, promotion, benefits or by being dismissed or subjected to a detriment. They should be treated the same way as other employees
  • Do not assume that individuals unable to produce acceptable documents are in the UK illegally. Best practice would be to keep the role open for as long as possible to enable them to demonstrate their right to work (although this may not always be feasible from a business perspective)

Once approved by the Secretary of State, the final version of the Code will have statutory force and may be taken into account by courts and tribunals. It will apply to all employers, regardless of size, in Scotland, England, Wales and Northern Ireland. The exact date from which the Code will apply has not yet been confirmed, although it is expected to be later this month.

If you would like to discuss the right to work checks that should be carried out or the interface with employment law please get in touch.

Joanne Hennessy
Senior Associate

Burness admin