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13 May 2014

Preventing illegal working

Two new draft Codes of Practice have been published to assist employers in preventing illegal working and avoiding discrimination in recruitment.

One aspect of recruitment that can prove tricky for employers to navigate is in relation to the duty to establish an individual’s right to work in the UK. This duty arises under the Immigration, Asylum and Nationality Act 2006, and must be balanced against the individual’s right not to be discriminated against, contrary to the provisions of the Equality Act 2010.

The 2006 Act requires an employer to carry out certain checks in order to establish whether an individual has the right to work in the UK, before the individual commences employment (not on the day they start).  This involves checking original documents from an approved list of documents to establish eligibility to work, making copies of those documents and keeping a record of them for the duration of the individual’s employment and for a period of two years after employment has ended.  For certain individuals who have limited entitlement to remain in the UK, checks must be carried out every 12 months (with effect from 16 May 2014, checks will only need to be repeated on the expiry of the temporary entitlement).

If an employer negligently employs an individual without the right to work, the employer is liable for a civil penalty (a fine).  From 16 May 2014, the maximum civil penalty for illegally employing immigrant workers is doubled from £10,000 to £20,000, per illegal worker.  An employer who knowingly employs an individual who does not have the right to work has committed a criminal offence, which can result in an unlimited fine or a prison term of up to two years.

A new draft Code of Practice has been published by the Home Office: Draft Code of Practice on Illegal Working. The new Code explains the process for employers to carry out a “right to work check”, including the lists of acceptable documents to check (List A and List B).  The range of acceptable documents has been reduced. It also sets out the factors that will be taken into account by the Home Office in determining the level of the penalty.  The penalty is likely to be much higher for those who have committed an offence within the previous three years, compared to those for whom it is a first offence.

The following mitigating factors will also be taken into account in determining the level of the penalty:

  • Employer reported suspected illegality;
  • Employer cooperated with Home Office investigation;
  • Effective document-checking practices in place. 

The Home Office has also recently published a further new draft Code of Practice: Avoiding unlawful discrimination while preventing illegal working, to assist employers in complying with both its duties under the 2006 Act and the requirements of the Equality Act 2010. This draft Code, once finalised, will replace the previous Code issued in 2008.  Whilst the Code itself does not impose any legal duties on employers, an employer’s failure to comply with its provisions can be used in evidence in legal proceedings.

The draft Code advises employers, as a matter of good employment practice, to have “clear written procedures for the recruitment and selection of all workers, based on equal and fair treatment for all applicants”.  Having such procedures in place (and following them) is likely to assist an employer in the defence of a discrimination claim, not least by demonstrating that it took “all reasonable steps” to prevent discrimination from occurring.

In order to avoid a potential claim of discrimination, the Code advises employers to carry out the checks required by the 2006 Act in respect of all new recruits, not only those who may appear to be of non-British nationality due to their name, accent or ethnicity.

What if the individual does not produce the documents necessary to establish their right to work in the UK?  The draft Code cautions against assuming that they are living or working in the UK illegally, and advises employers to keep the job open for as long as possible in order to give the individual the opportunity to demonstrate their right to work.  However, the Code also acknowledges that this may not be possible if the requirement to recruit is particularly urgent.  An employer who is not satisfied that an individual has the right to work in the UK can lawfully refuse to employ them on that basis.

Forthcoming training event

Employment law experts from Steeles Law will be examining a range of different issues relating to recruitment in more detail at the forthcoming Norfolk Chamber of Commerce HR Forum which is taking place at Dunston Hall on 18 June 2014, from 2pm.  For further information, including booking details, see the Chamber of Commerce website.