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Right to work checks – are your procedures discriminatory?

The government has now published a code of practice (the Code) providing guidance to employers to help them avoid falling foul of discrimination law when carrying out right to work checks.

It is well established that as an employer in the UK you must ensure that any individuals working for you are legally entitled to do so, or otherwise face the hefty penalties for employing illegal workers as we reported in our recent blog. At the same time, you need to make sure that you are not unlawfully discriminating in the way you carry out your employment checks because of race. Unsurprisingly, this had led to many employers feeling stuck between a rock and a hard place.

With an increasingly diverse workforce in the UK and many employers feeling uncertain about the correct procedure to follow when checking the right to work, the government has decided to produce this Code to provide some clarity.

What does the Code say?

The Code makes a number of sensible recommendations to help you avoid unlawful discrimination when you are carrying out checks to prevent illegal working. The key recommendations include;

• Checking the right to work of ALL your employees before they begin their employment. This is known as the statutory excuse and further details on the requirements can be found here;

• Having clear written procedures in place for the recruitment and selection of workers based on equal and fair treatment for all applicants. Importantly, make sure your staff know these procedures exist;

• Ensuring all job selections are made on the basis of suitability for the post. You should not make assumptions about a person’s right to work on the basis of their colour, nationality, ethnic or national origins, accent or the length of time they have lived in the UK;

• Not treating job applicants who have a time limited right to work in the UK less favourably;

• Carrying out equal opportunities monitoring during the recruitment and selection process of job applicants.

What if I don’t follow this Code?

The Code is not a legally binding document. However, the Courts and Employment Tribunals may take into account any breach of the Code when deciding whether you have committed an act of unlawful discrimination.

What should I do now?

Before you do anything else, read the Code. It is only six pages in length and the Home Office can be applauded for producing a Code that is straightforward and easy to follow. We also recommend putting in place Code compliant recruitment and selection procedures. If you already have these written procedures in place, carry out a review to make sure they are compliant. In both cases, ensure that the staff involved in your recruitment and compliance processes receive practical training.

In summary, the best way to ensure that you do not discriminate is to treat all applicants fairly and in the same way at each stage of the recruitment process.

If you have any queries regarding this issue, or anything else relating to business immigration within the context of employment, then please feel free to contact us using our Get in Touch form.

For further information and top tips on the “right to work checks” take a look at our immigration toolkit.

 

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further