Recruiting immigrant labour
The problem
You are the manager of a hotel. An immigrant from eastern Europe applies to you for a job as a kitchen assistant, a vacancy you have advertised in a local paper. They do not have a work visa and you are unsure what you should do.
Expert Advice
Immigrants can be a useful source of labour, particularly for those needing low-skilled temporary or seasonal workers, but it carries the risk of inadvertently employing people with no legal right to work in this country.
Most people from ethnic minorities seeking work are not subject to immigration control. They may be British or Commonwealth citizens with a right of abode in the UK, or citizens of a country in the European Economic Area (EEA). From next year that will include millions of citizens from eastern European countries joining the EU. The Government also expects to issue 175,000 work permits to non-EU workers this year.
Asylum-seekers can work in the UK if they have written permission; a person who is subject to immigration control can work in the UK provided they have leave to enter and remain.
In most cases, it is perfectly legal to employ someone even if they are not a British citizen or they are an immigrant. But how can an employer avoid getting fined for employing an illegal immigrant unawares?
They must ensure they see an original of one of the following documents relating to the person:
* A document stating the person's national insurance number.
* A stamp in their passport or other travel document or a letter from the Home Office showing indefinite leave to stay with no restriction on working.
* A work permit or other government permission to work.
* A birth certificate, passport or other written proof of UK citizenship or right of abode in the UK.
* A passport or national identity card proving they are an EEA national.
It is important you take a copy and keep it on file. This gives you a statutory defence to a prosecution under the Asylum & Immigration Act if it turns out the person is working without permission.
Beware of discrimination issues, however. Don't avoid employing someone just because they are an immigrant or asylum-seeker or because of their national or ethnic origins. That would be discrimination under the Race Relations Act 1976.
Be fair and transparent in your recruitment procedure and treat all applicants in the same way. Don't ask for work permits only from those whom you suspect; tell all applicants they must bring proof of being able to work in the UK to the interview as well as the documents set out above.
Avoid any other questions about their immigration status as that could suggest you are being discriminatory. The successful applicant should be selected only on suitability.
If someone cannot produce proof of being able to live and work in the UK, they should be referred to a Citizens Advice Bureau to obtain advice about their rights. Rejecting them without giving them an opportunity to provide proof of being able to work in the UK could be construed as discriminatory.
The law
* It is a criminal offence under the Asylum & Immigration Act 1996 to knowingly employ someone who does not have permission to live and work in the UK.
* If an applicant believes they have been discriminated against on racial grounds, they can make a complaint in an employment tribunal. The tribunal can award compensation.
Check list
* Ask all candidates for proof they can work in the UK, and take copies.
* Have an equal-opportunities policy and a written recruitment procedure.
* Do not discourage applicants because of their colour, race, ethnic origin or immigration status.
* If someone cannot produce the required proof, refer them to a Citizens Advice Bureau.
Beware!
Under the Asylum & Immigration Act knowingly employing staff with no right to live and work in the UK could result in a fine of up to £5,000 per worker. Compensation for racial discrimination is unlimited. It covers loss of earnings and injury to feelings and often runs into the thousands.
Contacts
Paul Whitaker, Rooks Rider 020 7689 7000
Department of Trade & Industry
www.dti.gov.uk/er/
