False’ advice reveals race risks
The Government has conceded that recent laws on employing foreign nationals
can be used as a cover for race discrimination.
The admission comes as Unison accused the Home Office of giving false advice
to an employer that led to the dismissal of a woman asylum-seeker who was
entitled to work in the UK. The union is pursuing a claim of unfair dismissal.
Home Office guidance warns employers that they can fall foul of the Race
Relations Act 1976 if they attempt to avoid prosecution under the newer law by
refusing to consider anyone for a job who "looks or sounds foreign".
"There is a difficult balance to be struck between keeping powers to
deal firmly with the growing problem of illegal working while recognising that
the section [in the Asylum and Immigration Act 1996] could be used as a cover
for discriminatory practices," said a Home Office spokesman. But he ruled
out fresh calls for the law to be repealed.
Unison national officer Sanjiv Vedi said, "If the Home Office itself
can give incorrect information, then clearly there is confusion about this
issue."
The case, involving the Royal Borough of Kensington and Chelsea, highlights
confusion for employers surrounding the 1996 legislation. This makes it a
criminal offence to employ someone not entitled to work in the UK.
But an employer cannot carry out a check on an employee if they have been
employed since before section 8 came into force on 27 January 1997.
Kensington and Chelsea sought advice from the Home Office and dismissed the
woman late last year. But Unison said the advice was wrong, as the woman had
been working since before 1997.
Russell Brimelow, head of the employment group Boodle Hatfield, said the Act
puts employers in a difficult situation. "You cannot immediately tell what
status someone has from the stamps in [a passport] and if you get it wrong you
can leave yourself open to either a costly discrimination claim or a fine."
By Helen Rowe
The Asylum and Immigration Act 1996,
Section 8
• It is a criminal offence to employ someone who is not eligible to work in
the UK
• The offence applies only to those who started work on or after 27 January
1997
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• You should not make any checks on employees who were working for you
before 27 January 1997
The Home Office guidance adds: "If you try to avoid prosecution by
refusing to consider for a job anyone who looks or sounds foreign, you are
likely to contravene the Race Relations Act 1976."
