The government has recently published a draft statutory code of practice on how to avoid unlawful discrimination while preventing working.
What does the code say?
All employers have a duty to carry our pre-employment immigration checks to ensure that their workers have the right to work in the UK. However, an obvious risk arises if an employer only undertakes checks in respect of its non-British workforce, or only checks ethnic minority job applicants. In this situation, an employer could face discrimination complaints on the grounds of colour, ethnic and/or national origins. If these complaints are successful a Tribunal may award compensation (which is not subject to a cap).
With this in mind the government undertook a consultation on illegal working resulting in this draft code (which replaces the previous 2008 code).
In summary the code states that employers should:
- Check all prospective workers’ right to work in the UK and take copies of the relevant documents. Where an individual has a limited right to remain in the UK, this exercise should be repeated. Doing so will provide the employer with a “statutory excuse” if any worker is subsequently found not to have the right to work in the UK
- Have a clear procedure in respect of its recruitment and selection of workers which should be applied consistently and fairly to all applicants
- Monitor diversity of its applicants (including disability, gender and national/ ethnic origin)
- Not treat an individual less favourably if s/he has a time limited right to work in the UK. Once the individual has demonstrated a time-limited and an ongoing right to work in the UK s/he should not be treated less favourably in terms of employment, opportunities for training, promotion, benefits, facilities or services, or by being dismissed or subjected to any detriment
- Not question a job applicant’s or worker’s immigration status unless it is necessary to determine whether his/her status imposes limitations on the number of hours s/he may work each week, the type of work s/he may carry out, or the length of time for which s/he is permitted to work
- Not make assumptions based on an individual’s appearance, accent etc, or if an individual is unable to produce documents to demonstrate a right to work in the UK. The employer should instead provide him/her with a reasonable opportunity to evidence a right to work (keeping his/her job open as long as possible).
So what does this mean for employers?
Whilst the code does not impose any legal duties on employers, it may be used as evidence in legal proceedings. Therefore, it is recommended that employers should review and implement it as best practice guidance in order to avoid the cost and disruption of having to defend a discrimination claim.