Employers have a duty to carry out document checks on individuals before employing them. The aim of the checks is to ensure that individuals have the legal right to work in the UK. Correctly carrying out document checks gives employers a “statutory excuse” if they inadvertently employ an illegal worker, which means that the employer is likely to avoid criminal and/or civil penalties.
In May 2014, the Home Office published a new statutory Code of practice to provide practical guidance to employers on avoiding illegal discrimination when carrying out the checks. It’s content is very similar to the old Code covering the same subject which it replaced.
Scope of the Code
The Code applies to all employers in Wales, Scotland, England and Northern Ireland and to some other organisations, for example employment agencies.
Does the Code impose any new legal duties on employers?
The Code does not impose any legal duties on employers but can be used as evidence in legal proceedings. For example, an employee could refer to a breach of the Code by his/her employer in a claim before the Employment Tribunal. In our view, whilst the Code serves as a useful reminder to employers, it simply reinforces what has been good practice for some time.
How might an employer risk unlawfully discriminating when making document checks?
Under section 39 of the Equality Act 2010 in Wales, Scotland and England, and under article 6 of the Race Relations (Northern Ireland) Order 1997 in Northern Ireland, it is unlawful for an employer to discriminate against a potential or existing worker because of race or on racial grounds. Race and racial grounds include colour, nationality and ethnic or national origins.
The greatest risk area for employers is in failing to implement a consistent system of checks for all job applicants/employees. For example, only carrying out checks on individuals who are, or appear to be, from a minority ethnic background is likely to amount to unlawful direct race discrimination. And only carrying out checks on individuals who speak English with a ‘foreign’ sounding accent is likely to be unjustifiedindirect discrimination.
There are a number of practical issues that employers can consider and implement to minimise the risk of unlawfully discriminating when carrying out document checks. For example:
- Do not make assumptions about someone’s right to work or immigration status on the basis of matters such as their colour, name, accent or ethnic or national origins
- Produce a written policy explaining that document checks will be carried out and the documents which you will accept as evidence of a right to work in the UK, and keep it up to date
- Inform prospective job applicants/staff of the policy – this will give individuals time to locate or obtain documents
- Ensure that individuals whose documents show a time-limited right to work in the UK are not treated less favourably than others
- Subject to business need and pressure to appoint quickly, consider granting an extension where an individual has difficulty producing documents for a good reason such as the fact that documents are with the Home Office, or find an alternative way to establish that the individual has the right to work in the UK
- Consider when in the recruitment process it is appropriate to request documents. Making the request after the recruitment decision has been made avoids a potential argument that the decision was tainted by knowledge of an individual’s immigration status. However, this has to be balanced against the risk of making a decision only to find that the individual is unable to produce appropriate documents.
Please click here for the Code