On 16 May 2014, the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014 came into effect. This brings into force a statutory code of practice for employers on preventing illegal working (the “Illegal Working Code”) and avoiding unlawful discrimination while preventing illegal working (the “Discrimination Code”).
The Illegal Working Code introduces changes to the civil penalty regime applied to employers found to be illegally employing immigrant workers, and it raises the maximum civil penalty which may be payable by an employer, if they are found to be illegally employing an adult worker, from £10,000 to £20,000.
In order to avoid the risk of being accused of discrimination, the Discrimination Code recommends that employers should undertake uniform document checks on all employees before their employment commences. This provides the employer with a statutory excuse against a civil penalty under the Illegal Working Code if any of the employees are later found to be working without suitable permission in the UK, and protects them against accusation of discrimination in respect of the checks under the Discrimination Code. The annual checks which previously applied to all employers with a temporary migrant workforce have been replaced by a basic requirement to carry out a second “follow‑up” check, together with a new list of documents.
The general position set out in the two Codes is summarised below:
- The list of acceptable documents for the purposes of a “right to work” check has been reduced, with several documents, including work permits and general Home Office letters, being removed entirely.
- Employers are no longer expected to carry out annual checks on temporary migrant employees, and a new follow‑up check has been introduced at the point at which the migrant’s UK visa expires. Alternatively, for those who have an application or appeal outstanding with the Home Office, the checks will remain valid for six months before they must be repeated.
- The grace period for conducting “right to work” checks on employees acquired following a Transfer of Undertakings (Protection of Employment) 2006 transfer has been extended from 28 to 60 days.
- Employers will now be expected to keep a record of the date on which a check was carried out. Additionally, employers will no longer be required to take copies of an employee’s passport front page when carrying out their “right to work” checks.
- International students with temporary leave to remain must provide their employer with evidence of their academic term and vacation times for the full period of their UK study.
- Employers should monitor the diversity of applicants, including disability, gender and national/ethnic origin in order to avoid discrimination.
- Ensure that a clear procedure is in place for the fair recruitment and selection of workers.
- An individual should not be treated unfavourably if he or she has a time limited right to work in the UK.
- Employers should not question a job applicant’s or worker’s immigration status unless they are required to determine whether his/her status imposes limitations on the number of hours he or she may work each week, the type of work permissible or the length of time for which the employee is permitted to work.
- Assumptions should not be made based on an individual’s appearance, accent or if an individual is unable to immediately produce suitable documentary evidence to prove that they have a right to work in the UK. Instead, the job should be kept open for as long as possible whilst the individual is given a reasonable opportunity to produce evidence of their right to work.