Immigration checks can be a tricky area for employers. Failure to comply can result in employment claims, fines and in the most severe cases, imprisonment. The Home Office has issued new Codes of Practice to help (i) prevent illegal working and (ii) avoid unlawful discrimination while preventing illegal working. These codes apply to those individuals whose employment began on or after 29 February 2008 and where those breaches occur after 16 May 2014. So what are the main changes?
Preventing illegal working
All employers have a responsibility to prevent illegal working in the UK by ensuring that their employees have the right to work. This involves 3 basic steps, (i) obtaining original versions of acceptable documents, .e.g., a passport; (ii) checking the document in the presence of the individual in person or via a live video link; and (iii) making copies of the documents, retaining the copies and recording the date on which the check is made. The latest code provides for the following updates:
- Employees with temporary permission to work – following the initial right to work check, employers will only be required to re-check the right to work when the permission is due to expire rather than every 12 months.
- Right to work documents – the range of documents that are acceptable for checking has been reduced. Travel documents, work permits and general Home Office letters are no longer acceptable.
- Student visas – employers will be required to obtain and retain a copy of evidence from the student’s education sponsor, setting out term and vacation times.
- TUPE – employers will be allowed 60 days (previously 28 days) from the date of transfer to carry out the necessary right to work checks.
- Penalties – the maximum civil fine for those who negligently hire illegal workers has increased to £20,000. The penalty for employers who knowingly hire illegal workers remains unchanged, namely, an unlimited fine and/or up to 2 years in prison.
Avoiding unlawful discrimination
With the potential sanctions facing employers for breaches of immigration rules, many employers may take an overly cautious approach to recruitment. This in turn can inadvertently lead to discrimination. The Home Office therefore recommends that employers should:
- Implement written recruitment procedures – these should focus on the suitability for the role and avoid any criteria which could potentially discriminate against applicants, e.g., personal prejudices against an individual’s appearance or accent.
- Not prejudge – do not make assumptions about somebody’s right to work in the UK based on their colour, ethnicity, nationality, national origin or accent.
- Be consistent – apply the same checks to all applicants.
- Think carefully about questions asked about immigration status – they should be limited to determining whether there are restrictions on hours, type of work which can be undertaken and the length of time that they are permitted to work in the UK.
- Not preclude individuals with a time limited right to work – employers should not preclude an employee from selection because their permission to work may be time limited.
- Monitor – review the diversity of potential applicants to see if you are appealing to a wider section of society.
What should you do?
- Check your records – ensure that you have the correct right to work documents held on record for each employee.
- Diarise – implement a system to check right to work documents for those with restricted rights to work in the UK.
- Review recruitment and employment policies – check the immigration status questions that you pose to potential applicants and try to afford the same opportunities, such as training, to individuals even where they have time-restricted permission to work in the UK.
By Adam Grant