Employers must carry out right to work checks on their employees. A new code of practice provides practical guidance on how to avoid illegal discrimination when carrying out the checks. Employers have a duty to prevent illegal working in the UK by carrying out document checks on people before employing them to confirm they have a right to work here. Failing to conduct these checks is not itself a criminal offence, but if an employer only carries them out on people who they believe are not British citizens, for example, on the basis of their colour, or ethnic or national origins, they could find themselves accused of discrimination and it could be used as evidence against them in proceedings under the Equality Act 2010 or the Race Relations (Northern Ireland) Order 1997, as amended.
Anyone who believes that they have been discriminated against, either directly or indirectly, by an employer, a prospective employer or an employment agency, because of their race may bring a complaint before an Employment Tribunal, or an Industrial Tribunal in Northern Ireland. If the complaint is upheld, the Tribunal will normally order the payment of
compensation, for which there is no upper limit. This is why we recommend that you, as an employer, obtain a statutory excuse for all prospective workers as this will protect you from liability for a civil penalty if the person in question is an illegal worker, whilst also demonstrating consistent, transparent and non-discriminatory recruitment practices. Where the employee only has a limited entitlement to remain in the UK, these checks should be repeated as prescribed in the guidance and ‘Code of practice on preventing illegal working: civil penalty scheme for employers’ in order to retain the excuse.
It is important to remember that the population of the UK is ethnically diverse. Many people from ethnic minorities in this country are British citizens and many non-British citizens from black and minority ethnic communities are entitled to work here. You must not therefore assume that someone from an ethnic minority is an immigrant, or that someone born abroad
or who speaks with a particular accent is not allowed to work in the UK.
If you require further advice, please e-mail us on info@icslegal.com or contact us on 0207 237 3388.
