Employers should not discriminate when asking to see registration papers from workers who appear to be non-UK nationals. Katee Dias explains that you should check documentation of all workers to prove their right to work in the UK.
One of my waiters is from Poland. Am I discriminating against him by asking to see his registration papers to prove his right to work in the United Kingdom, or am I within my rights?
Nationals of the European Economic Area (EEA) and Switzerland generally have an automatic right to work in the UK. EEA members are currently Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden and the UK.
However, it's important to remember that the countries which recently joined the EEA have additional immigration requirements before they have an unfettered right to work in the UK:
- Nationals of Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia and Slovak Republic must register with the Workers Registration Scheme.
- Citizens of Romania and Bulgaria need a work permit and an accession worker card.
Further details regarding these immigration rules can be found on the UK Border Agency's website at www.ukba.homeoffice.gov.uk.
As your waiter comes from Poland, he will be subject to the Workers Registration Scheme if he is going to be working for more than one month in the UK. This means that he must submit an application, together with a £90 fee, to the UK Border Agency, which will issue him with a registration card and certificate.
Once your waiter has completed 12 months' work, with no more than 30 days' break, he will no longer need to be registered. He can, instead, apply for a registration certificate from the UK Border Agency confirming his right to live and work in the UK.
Asking your Polish waiter to provide you with his registration documents is entirely appropriate, given that he is subject to the rules of this additional immigration scheme. However, it is extremely important to remember that you should also be asking your other employees, including UK nationals, to provide whatever documentation is required in order to prove their right to work in the UK. If you carry out checks only on those who appear to be non-UK nationals, you are exposing yourself to potential race discrimination claims.
- At the outset of the employment relationship, carry out appropriate checks to ensure that your new employee has the right to work in the UK.
- Treat employees equally, for example, do not just obtain evidence of the right to work in the UK from those who look like they are not UK nationals.
- Ensure that employment offers are conditional upon receipt of the necessary documentation evidencing the employee's right to work in the UK.
- Ensure that you obtain the correct documentation to evidence the person's right to work. See the Home Office's Border and Immigration Agency code of practice for further details.
- Remember to repeat any necessary checks on employees who have limited leave to live and/or work in the UK.
It is an offence to employ someone who does not have permission to work in the UK. This can lead to criminal liability resulting in a custodial sentence of up to two years and/or an unlimited fine, or civil liability leading to a fine of up to £10,000.
Compensation in a successful race discrimination claim is based on two elements. First, an award representing injury to feelings, and second, compensation for loss of earnings.
Remember that the total amount that may be awarded by an employment tribunal in a discrimination claim is unlimited.
Katee Dias, Goodman Derrick
020 7404 email@example.com