• Avoiding Discrimination in “Right to Work” checks

    UK employers are very much aware of the benefits of employing foreign nationals and the talents and skills they can bring to the workplace, but they also need to be aware of the strict Home Office rules intended to prevent exploitation and illegal immigration, and the legal duty employers have to ensure that any prospective or current staff have the right to work in the UK. With a chronic labour shortage employers should nonetheless continue to ensure their staff have the right to work to avoid costly and severe sanctions.

    Employing someone who you knew or had ‘reasonable cause to believe’ did not have the right to work in the UK can lead to an unlimited fine or 5 years in prison. https://www.gov.uk/check-job-applicant-right-to-work It is crucial therefore that before employment commences, you have carried out a “right to work” check – either manually, by checking the applicant’s documents, or by using an Identity Service Provider or online via the Home Office Employer Checking service. Employers who don’t comply with these rules correctly may face a civil penalty of up to £20,000 per illegal worker. Your business’s details may also be published by Immigration Enforcement as a warning to other businesses not to employ illegal workers.

    How can you ensure such checks don’t fall foul of race discrimination laws?

    The protected characteristic of “race” as defined by the Equality Act 2010 includes skin colour, nationality or ethnic or national origins – a broader spectrum than might seem immediately obvious. Some examples of direct discrimination on the grounds of race would be:
    a) Refusing to employ anyone who wasn’t British
    b) Recruiting staff from only one nationality or ethnic group (an issue that has long been contentious in the restaurant industry).
    c) Failing to interview a foreign national on the assumption that they would not have the right to work in the UK
    d) Carrying out “right to work” checks only on Black employees.
    A staff policy that disadvantages certain protected individuals or groups may be “indirectly” discriminatory, regardless of whether that discrimination was intended or not. For instance, a requirement that staff should be living in the UK for over five years before commencing employment, would discriminate against those who came to the UK more recently.

    Best practice recruitment policies

    1. Ensure job adverts, application forms and interview procedure do not discriminate against candidates, for instance in discouraging certain groups from applying.
    2. Select candidates solely on the basis of aptitude and suitability – Right to Work checks always should be the final stage.
    3. Be consistent in requiring Right to Work evidence from all candidates and be prepared to accept different types of evidence whether digital or physical and to carry out checks on that documentation if required.
    4. At interview, only ask candidates about their immigration status when you need to determine whether that status limits the number of hours or type of work they may engage in. You should not ask questions related to race, nationality or ethic origin.
    Remember, too, that if any of your employees act in a racially discriminatory way, you as the employer can be held responsible – regardless of whether you knew about or approved of that behaviour. For this reason it makes sense to have a written equality procedure available to all staff, and to carry out training if necessary.
    Unsurprisingly, many employers feel it saves time and money to require right to work status from all applicants and to automatically reject those who can’t evidence it. You may be able to argue good reason for such a policy (for instance, that you are recruiting candidates for lower paid roles that cannot be sponsored under the Skilled Worker route). Case law in this area is dated; the most recent decision was in Osborne Clarke v Purohit (2009) in which the Tribunal ruled that a policy of excluding candidates who did not have the right to work was discriminatory because the employer (in this case a law firm) could easily have afforded to recruit candidates on merit and carry out other checks last of all. There has not been a relevant judgment since. It may therefore be the case that a company with tighter resources, recruiting for low skilled or low paid roles may be able to justify such a policy but as no such challenge has recently been made, it remains to be seen if the courts would accept it.

    What if an applicant or employee’s right to work is time-limited?
    You should not discriminate against applicants or employees who have a time-limited right to work – they may apply for an extension. You should conduct a follow-up check shortly before the permission it is due to come to an end. Provided a new application has been made before the expiry date their previous right to work will continue until the Home Office reach a decision (which can take some time). You can also conduct a check using the Home Office’s Employer Checking Service, because a ‘Positive Verification Notice’ gives you a statutory excuse against liability for a civil penalty for up to six months.
    Can I dismiss an employee who does not have the right to work?
    If you become aware that an employee’s right to work lapses (with no re-application) or is removed, you should act quickly. Initially, you should hold an investigatory meeting with your employee, request information on their immigration status and make clear the need to resolve the issue.
    If the investigation reveals that your employee likely does not have permission to work in the UK, then you may continue towards dismissal. It is vital to follow the correct procedure even if the employee has been with you less than two years – discrimination claims can be brought by employees (or indeed even applicants) who would otherwise not be protected from dismissal.
    If dismissal is appropriate, you should provide the employee with details of the investigation, refer to the right to work details in their contract and give the reason for dismissal as “We believe you do not have the right to work.” The employee should have a right of appeal and the opportunity to be reinstated if they can prove the right to work.

    What about transfers under TUPE?

    Technically, you are covered by any checks done by the seller of the business, but if checks were absent or inconsistent you, as the new owner, will be responsible. You should check with the business seller and obtain indemnities, and then carry out your own checks once the employees have transferred (there is a period of 60 days in which you can do so before becoming liable for a civil penalty for any breach).
    If sponsorship of certain employees is being transferred to you, both you and the former business owner must notify the Home Office of the sponsorship change within 20 working days of the transfer date. If you do not hold a sponsor licence you will need to obtain one from the Home Office (again, within 20 working days) after which you will be held responsible for the sponsorship of those employees. If this is not done then the employees may face a cancellation of their right to work permission.
    The Government has recently issued a statutory guidance code applicable to all UK employers, and to employment commencing on or after 6 April 2022 (including repeat checks on existing workers employed before that date). https://www.gov.uk/government/publications/right-to-work-checks-code-of-practice-on-avoiding-discrimination/code-of-practice-for-employers-avoiding-unlawful-discrimination-while-preventing-illegal-working-in-force-from-6-april-2022-accessible-version
    The Equality and Human Rights Commission also provides useful “fair recruitment” recommendations at the following link:

    Our employment law solicitors can advise you on business immigration and all discrimination issues and how to protect your business from Tribunal claims.
    Please contact Zoe on 0203 858 9765 or email zoe@mulberryssolicitors.com.
    Mulberry’s has offices in Brighton and London.

    This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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