In the latest round of UK developments, the Government has set out its draft statutory Code of Practice for employers on avoiding unlawful discrimination whilst preventing illegal working.
Some may question whether the Code is a necessary tool, but many employers would clearly vote in support of its implementation. Presently, employers have to perform a fine balancing act between complying with the statutory duty to prevent illegal working, against the need to avoid direct or indirect race discrimination.
The UK Government argues that it has become common practice for employers to carry out immigration checks only on those people whom they believe may not be British citizens based on their colour, ethnic or national origins. It is this practice which sees employers often being unreasonably accused of discriminatory behaviour. Therefore, by providing some degree of clarity in the form of the Code, employers will be able to demonstrate consistent, transparent and non-discriminatory practices.
Under the draft Code employers will be encouraged to check a person's immigration status and required to take steps to verify and retain copies of any immigration documents prior to them commencing employment. Should an employer follow this procedure then they are provided with the legally termed statutory excuse that protects them from incurring any penalty if the employed person is subsequently found to be an illegal worker.
It is important for an employer to bear in mind that should the person be unable to provide documentation of their immigration status, it should not automatically assume that the individual is an illegal worker. Instead, the onus shall be upon that employer to keep the job offer open for as long as possible to allow that person sufficient time to demonstrate their right to work in the UK. The Code fails to give any indication as to what duration would constitute sufficient time. Obviously, an employer cannot be expected to keep the job offer open indefinitely, particularly if it needs to recruit someone urgently for business reasons. Therefore, it is certainly going to be interesting to watch how this Code is adopted and utilised going forward.
The Code is still in draft format and does not currently impose any legal duties on employers. However, it has already been approved by the Secretary of State and laid before the UK Parliament. It is only a matter of time before this Code comes into force and may be relied upon in legal proceedings. Although the Code only addresses the issues of race at this early stage, the Government is already warning employers to be mindful of other forms of discrimination whether it is age, disability and sex (to name but a few).
Channel Islands' employers may probably wonder what impact the Code will have on them and whether they need to pay any attention to these latest developments. Well, in reality, Guernsey and Jersey already have their own laws on point; employees are required to hold valid Right to Work documents before being able to legally work in either island; arguably this is already a type of immigration check. However, employers should still be mindful of the need to avoid discriminatory conduct and ensure fair and equal treatment for all whether it is in the course of any recruitment and selection process, or during the course of their employment. The Islands may not have the range of protected characteristics seen in the UK, but Guernsey does prohibit discrimination on the grounds of sex and Jersey will soon be prohibiting discrimination on the grounds of race. The Code cannot simply be ignored.
Employment and Pensions News - May 2014
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