(1) What is the Code of Practice?
The government has published the Code of Practice for employers on how to avoid unlawful discrimination while preventing illegal working in the UK, which came into force on 16 May 2014. The code has been issued under section 23(1) of the Immigration, Asylum and Nationality Act 2006 and applies where employment commenced on or after 6 April 2014.
There is a duty upon employers to ensure that they carry out document checks on prospective employees before employing them in order to assess whether they have a right to work in the UK. However the code makes it clear that an employer is not allowed to carry out the checks on people based on their colour, ethnic or national origin only as this would constitute discrimination and the employer potentially being liable for proceedings under the Equality Act 2010.
(2) To whom does the code apply?
The code applies to all employers in England, Scotland, Wales and Northern Ireland. It also applies to recruitment agencies, and employment businesses. The code also applies to smaller companies as they too would be liable in the same way and must ensure that they do not discriminate under race or racial grounds including nationality, colour or ethnicity. Race discrimination may be direct or indirect.
(3) What is direct race discrimination?
Direct discrimination is where an employer may treat a person unfairly on the basis of racial grounds. For example, refusing all non-EU applicants or any applicants who are not British nationals for a job or rejecting applicants who are of a particular nationality. Examples include: (a) where an employer makes an assumption about people from some nationalities; (b) when an employer recruits only employees from one particular nationality; (c) where a person’s overseas qualifications are not given due consideration and considered inferior to qualifications gained in the UK; and (d) where a person with limited leave to remain in the UK is given less favourable work than permanently settled workers.
(4) What is indirect race discrimination?
Indirect discrimination is where certain requirements or criteria would put people of a particular racial group at a disadvantage compared to others. An example would include, requiring some migrants to have been resident in the UK for a certain period of time before being considered for a particular position.
(5) What does the code mean for employers?
Employers must ensure that they take reasonable steps to prevent discrimination. In order to avoid discrimination employers should have clear written procedures for recruitment and selection which are fair and equal for all applicants. This could form part of an equal opportunities policy.
Employers must not make assumptions about a person’s immigration status on the basis of their accent, colour, or nationality. The code recommends that all employers should request copies of documents from applicants before they commence work in order to be provided with a “statutory excuse” preventing them from facing a Civil Penalty if a person is then found to be working illegally.
A statutory excuse is provided where there is evidence that the employer took all reasonable steps and obtained all documents from an employee to ensure that they were entitled to work in the UK, before the commencement of their employment. The checks should be repeated on people that have limited leave to remain in the UK, in order for the statutory excuse to be retained.
A person with limited leave to remain must not be treated less favourably than those with no time limit restrictions. They must be offered the same training, benefits, services, and promotions.
An employer should only question an applicant’s immigration status in order to determine the number of hours they are permitted to work. This is to ensure that they are not working over the permitted number of hours as this would mean that they would be breaching their conditions of leave.
An employer must not assume a person is living or working in the UK illegally, in circumstances where they are not able to provide acceptable documents. Instead, the job should be kept open and the applicant should be given an opportunity to provide the document. The ultimate decision however remains with the employer as to whether they wish to employ an individual and whether they wish to keep the post open.
By Jasmine Shergill,
Solicitor – Immigration, HR & Employment Department for TURBERVILLES (http://www.turbervilles.co.uk/)
This blog does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken