Resources

Two draft codes of practice for employers: preventing illegal working and avoiding unlawful discrimination

14 May 2014

The Home Office has recently published two draft Codes of Practice which aim to guide employers on the right-to-work checks they should carry out before and during an employee’s employment, and how to avoid breaching the equality laws enshrined under the Equality Act 2010 when doing so. They are guidance documents only and do not impose any legal duties on employers, but may be used as evidence in legal proceedings. They will replace the existing 2008 Code of Practice and will apply to all employers, employment businesses, and employment and recruitment agencies.

The draft Code of Practice on preventing illegal working explains the civil penalties that may be imposed by the Home Office in the event that an employer is found to be employing someone who does not have the right to work in the UK. A civil penalty will be imposed unless an employer can establish the statutory excuse. To do this, an employer must show that, prior to the employment commencing, they have inspected and taken a copy of an acceptable document which proves the employee’s right to work in the UK. An employer must repeat the documentation check in respect of any employee who is subject to immigration control. The draft Code sets out the acceptable documents to demonstrate the statutory excuse.

For those who cannot rely on the statutory excuse, the draft Code explains how the civil penalty is calculated. For employers who have been found to be employing illegal workers in the last three years, the starting maximum penalty is £20,000. For employers who have not been found to be employing illegal workers in the last three years, the starting maximum penalty is £15,000. The penalty may decrease based on the following factors:

  1. Did the employer report the suspected illegal working?
  2. Has the employer actively co-operated with the Home Office’s investigation?
  3. (For those who have not been found to be employing illegal workers in the last three years and together with points 1 and 2 above) Has the employer carried out any effective document checking practice?
It is obviously important to carry out the appropriate right-to-work checks at the outset of the employment, but remember that mistakes may happen. Employers should not be afraid to ask questions to determine an employee’s right to work (provided they act fairly and equally) and to contact the Home Office if it has any concerns. Each factor above can reduce the civil penalty by £5,000, which means a fine of £15,000 can be reduced to nil if each factor is satisfied.

Employers who acquire employees as a result of a transfer of employment must carry out right-to-work checks themselves, they cannot simply rely on what they are told by the previous employer. Employers have a grace period of 60 days in which to carry out the document checks in order to establish the statutory defence.

The draft Code of Practice on avoiding unlawful discrimination while preventing illegal working explains how to carry out the right-to-work checks in a way that is fair and equal. It recommends that an employer carries out document checks on all prospective employees, not just those it believes are not British citizens. Not only will this enable the employer to establish the statutory excuse in all cases, it will also prevent an employer from making assumptions about its new members of staff based on race, colour or ethnicity.

The draft Code does what most equal opportunities policies do - it reminds employers that decisions on recruitment should be based on suitability for the post and that no job applicants are discouraged or excluded because of their colour, nationality, ethnic or national origins, appearance or accent. During the interview process, an employer should only ask questions about an applicant’s immigration status when it is necessary, for example if their immigration status imposes a limit on the type of work or number of hours they can do. A job applicant should not be treated less favourably because they have a time-limited right to work in the UK.

Employers should consider reviewing and, where necessary, updating their existing equal opportunities policy in light of the guidance. Those employers who do not have an equal opportunities policy should implement one and train staff on how to use it - not only will this help prevent any problems from arising, it may also help an employer defend any allegations of unlawful discrimination in the future.

Michelle Tudor
Barlow Robbins