Re:locate magazine | Immigration & Visas | Immigration and Discrimination

Hire people from abroad with no right to work in the UK, or handle them incorrectly once they get here, and HR departments could find themselves in big trouble. Jonathan Chamberlain has advice to offer.

Section 8 of the Asylum and Immigration Act 1996 (AIA) makes it a criminal offence to employ a person aged 16 or over who is subject to immigration control unless that person is entitled to be employed in the United Kingdom. An employer found guilty of an offence under section 8 will be liable to a fine of up to £5,000 in respect of each offence he is convicted of.

Employers may establish a defence to a charge if they carry out certain checks on a prospective employee’s eligibility to work before taking him or her on. This involves taking a copy of one of several specified documents the employee can produce. There is no requirement to do anything further. The defence will be valid unless it can be shown that you knew that the person was not entitled to work when you employed them.

The checks to be made can be built very easily into your recruitment process. However, employers who have built in such checks in order to establish a defence under section 8 are in danger of contravening the Race Relations Act 1976 if those checks are applied in a way that discriminates on racial grounds.

The Race Relations legislation was introduced to give protection to people against discrimination. Under the Race Relations Act 1976 (“RRA”) racial discrimination is discrimination on the grounds of ‘colour, race, nationality or ethnic or national origins’. Primary discrimination can take place in two ways:

Direct discrimination – where the employer treats an employee less favourably on racial grounds than he would treat other persons, for example by rejecting all job applicants who do not have British nationality or by refusing to consider any black job applicants;
Indirect discrimination – where the employer requires its employees to comply with an apparently race neutral provision, criterion or practice that is actually more difficult for members of a particular race to comply with, for example if an employer was to ask for a high standard of English where the job does not require this. There is a defence where the employer can show that the conduct is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.

Although it is not a criminal offence to contravene the RRA, applicants and employees may bring a claim in an employment tribunal. Potential compensation for a discrimination claim is unlimited.

In relation to immigration, discrimination usually takes place in the context of recruitment. Perhaps the main example is where an employer refuses to recruit people who appear or sound ‘foreign’ for fear of committing a criminal offence. But just as discriminatory is where, as in the case of Karimjee v University of Newcastle-upon-Tyne, the employer asks the applicant to provide documentary evidence of her right to work in the United Kingdom because her ethnicity makes them suspicious. It is lawful to ask all applicants for such evidence. It is unlawful just to ask ones you think might be foreign. That said, non EEA citizens will find it hard to bring a claim for direct discrimination, because they will find it hard to identify an appropriate comparator. The Act says there must be no material differences between the complainant and the comparator, but the automatic right to work in the UK enjoyed by EEA citizens is clearly a material difference. And the fact that employers face criminal sanctions if they breach the law is also relevant. Many problems, however, do remain in practice, which is why the Government has published guidelines to help employers.

In 2001, the Government published a Code of Practice for all employers on the avoidance of race discrimination in recruitment practice while seeking ?o prevent illegal working. Failure to observe the code is not a breach of the law, but the code is admissible in evidence in any proceedings under the RRA before a Tribunal.

To avoid racial discrimination while ensuring compliance with the AIA, the Code’s recommendations include the following:

Have clear written procedures for recruitment and selection based on equal and fair treatment for all applicants, and makes these known to the relevant staff.
Avoid making assumptions about a person’s right to work or immigration status on the basis of their colour, race, nationality or ethnic origin or national origins or the length of time they have been in the UK.
Treat all applicants in the same way at each stage of the recruitment process. An employer may ask applicants to provide the required documentation at any stage before they start work, but if an employer asks for a document from one applicant at a particular stage of the process, he should ask for a document from all applicants being considered at the same stage. An employer may, if he wishes, ask for documentation only from the person chosen to fill the vacancy if that is more convenient and he applies the policy consistently.
Avoid the presumption that, if a job applicant is unable to produce proper documentation to satisfy the AIA, he or she is living or working in the UK illegally. The applicant should be referred to a Citizen’s Advice Bureau or other agency for advice. The employer should keep the job open for as along as possible, but he is not obliged to do so if he needs to recruit someone urgently.
Monitor the outcomes of recruitment and selection by the ethnicity of job applicants.

Employers will face difficulties in ensuring that they comply with immigration law without at the same time discriminating against job applicants on racial grounds. The best way to avoid offences under both sets of legislation is to ensure that the correct documentation is required from prospective employees and ensure that this is a requirement for all employees, regardless of nationality, appearance or accent.

Jonathan Chamberlain is a partner specialising in employment law at Wragge & Co. Tel: 0870 9031000.

© 2007. Article taken from pages 20-21 of the winter 2005 edition of Re:locate magazine, published by Profile Locations, Spray Hill, Hastings Road, Lamberhurst, Kent TN3 8JB. All rights reserved. This publication (or any part thereof) may not be reproduced in any form without the prior written permission of Profile Locations. Profile Locations accepts no liability for the accuracy of the contents or any opinions expressed herein.