Government reforms (1): Illegal working & discrimination – draft code of practice

illegal-workingThe Government has published a draft code of practice to assist employers to avoid unlawful discrimination when complying with their duty to carry out pre-employment immigration checks.  The Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working is available here.

Although currently in draft the Code is unlikely to change before approval by the Secretary of State (which is likely to be very shortly).  The final version of the Code will have statutory force and may be taken into account by Courts and Tribunals. Therefore, it is recommended that employers should review and implement the Code as best practice guidance in order to help prevention of, and provide the best defence to, a discrimination claim.

The Code gives guidance on how to avoid race discrimination when complying with the duty to carry out pre-employment immigration checks.  In particular, the draft Code advises employers to:

  • 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 “clear written procedures for the recruitment and selection of all workers, based on equal and fair treatment for all applicants” and apply these 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 he or she has a time-limited right to work in the UK.  Once the individual has demonstrated a time-limited and an on-going right to work in the UK she or 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 necessary to determine:
    • whether his or her status imposes limitations on the number of hours he or she may work each week;
    • the type of work he or she may carry out; or
    • the length of time for which he or she 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 or her with a reasonable opportunity to evidence a right to work (whilst keeping his or her job open as long as possible).

The final Code will be supported by separate Government guidance and a Code of practice on the civil penalty scheme for employers.

The Code has been issued in light of the Government’s consultation on the prevention of illegal working, which included seeking the views of the Equality and Human Rights Commission and other appropriate employer bodies.