Avoiding discrimination in recruitment

With economic forecasts starting to look more positive, many employers are increasing their recruitment activity.  It is important for employers to make sure that their recruitment processes are watertight, not only to increase the chances of selecting the best candidate for the job but also to avoid the risk of potential claims of discrimination by those who are not selected.  Professional Support Lawyer Elizabeth Stevens looks at recent and forthcoming developments in this area.

One area that can prove tricky for employers to navigate is in relation to the duty to establish an individual’s right to work in the UK. This duty arises under the Immigration, Asylum and Nationality Act 2006, and must be balanced against the individual’s right not to be discriminated against, contrary to the provisions of the Equality Act 2010.

The 2006 Act requires an employer to carry out certain checks in order to establish whether an individual has the right to work in the UK, before the individual commences employment (not on the day they start).  This involves checking original documents from an approved list of documents to establish eligibility to work, making copies of those documents and keeping a record of them for the duration of the individual’s employment and for a period of two years after employment has ended.  For certain individuals who have limited entitlement to remain in the UK, checks must be carried out every 12 months.

If an employer negligently employs an individual without the right to work, the employer is liable for a civil penalty (a fine).  From May 2014, the maximum civil penalty for illegally employing immigrant workers is doubled from £10,000 to £20,000, per illegal worker.  An employer who knowingly employs an individual who does not have the right to work has committed a criminal offence, which can result in an unlimited fine or a prison term of up to two years.

New Code of Practice

The Home Office has recently published a new draft Code of Practice: Avoiding unlawful discrimination while preventing illegal working, to assist employers in complying with both its duties under the 2006 Act and the requirements of the Equality Act 2010. This draft Code, once finalised, will replace the previous Code issued in 2008.  Whilst the Code itself does not impose any legal duties on employers, an employer’s failure to comply with its provisions can be used in evidence in legal proceedings.

The draft Code advises employers, as a matter of good employment practice, to have “clear written procedures for the recruitment and selection of all workers, based on equal and fair treatment for all applicants”.   Having such procedures in place (and following them) is likely to assist an employer in the defence of a discrimination claim, not least by demonstrating that it took “all reasonable steps” to prevent discrimination from occurring.

In order to avoid a potential claim of discrimination, the Code advises employers to carry out the checks required by the 2006 Act in respect of all new recruits, not only those who may appear to be of non-British nationality due to their name, accent or ethnicity.

What if the individual does not produce the documents necessary to establish their right to work in the UK?  The draft Code cautions against assuming that they are living or working in the UK illegally, and advises employers to keep the job open for as long as possible in order to give the individual the opportunity to demonstrate their right to work.  However, the Code also acknowledges that this may not be possible if the requirement to recruit is particularly urgent.  An employer who is not satisfied that an individual has the right to work in the UK can lawfully refuse to employ them on that basis.

Forthcoming training event

Employment law experts from Steeles Law will be examining a range of different issues relating to recruitment in more detail at the forthcoming Norfolk Chamber of Commerce HR Forum which is taking place at Dunston Hall on 18 June 2014, from 2pm.  Click here for further information, including booking details.

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