Immigration raids at branches of Byron hamburger restaurants have brought employers’ right to work checks into focus. Anne Morris warns well-meaning organisations performing targeted checks on foreign workers of the discrimination risks.
Immigration officials last month raided several London branches of Byron Hamburgers, detaining 35 workers from Albania, Brazil, Egypt and Nepal.
Right to work checks
As many employers react to the Byron immigration raids by reviewing their own internal processes, one area which might get overlooked is discrimination.
It’s a tough ask for employers. What can you do to ensure your pre-employment processes are compliant, without being onerous, while also avoiding any accusation of discrimination under the Equality Act 2010?
Conscientious employers at risk
The regime preventing illegal working requires employers to carry out compulsory document checks on all workers. Under the legislation, employers may face civil and criminal penalties if they have hired an illegal worker without performing these checks.
Problems arise, though, where employers single out particular employees for document checks based on their race or appearance.
An employer cannot make assumptions about a person’s right to work or immigration status on the basis of their ethnicity, accent, physical appearance or the length of time they have lived in the UK.
To avoid any suggestion of bias or preferential treatment, it is important that employers implement right to work checks fairly and across the board.
Under the Equality Act, it is unlawful to discriminate against a job applicant or employee on the basis of their race, which includes:
An employer cannot make assumptions about a person’s right to work or immigration status on the basis of their ethnicity, accent, physical appearance or the length of time they have lived in the UK”
- nationality (including citizenship);
- ethnic origin; or
- national origin.
The Act prohibits both direct and indirect race discrimination and harassment. Direct discrimination applies where a person has been directly treated less favourably on racial grounds – if, for example, they have been rejected because they are not a British or EEA national.
Indirect discrimination applies where a condition or requirement is imposed by an employer, which applies equally to everyone, but is harder for a person from a particular racial group to satisfy and cannot be objectively justified.
This form of discrimination occurs where, for example, an employee is rejected because of an unjustifiably high English language requirement, which is not necessary to perform the job.
Checking an employee’s right to work in the UK
Employers must not discriminate a person in:
- the arrangements they make to decide who should be offered employment;
- the terms on which employment is offered/provided;
- refusing or deliberately failing to offer employment;
- the way they make opportunities for training, promotion, transfer, facilities, services or other benefits available;
- refusing access to such opportunities, benefits, facilities or services; or by dismissing a worker or subjecting him to some other detriment.
Employers are liable for any discrimination committed by an employee in the course of employment, whether or not they knew of it, unless the employer took reasonable steps to prevent such discrimination.
A statutory code of practice has been produced by the Home Office to help avoid discrimination while preventing illegal working.
The guidance recommends that, to ensure only employees with the right to work in the UK are employed in a non-discriminatory way, the most effective solution is to apply fair and uniform policies that apply to all job applicants and employees.
Fair recruitment processes
At the start of the recruitment process, organisations must remind all applicants that they will be required to supply original documents confirming their immigration status and right to work.
Organisations should enforce a uniform right to work policy, which requires all short-listed applicants to provide the prescribed documents that must be checked to avoid a civil penalty.
The guidance advises: “This not only protects the employer from liability for a civil penalty, but also demonstrates consistent, transparent and non-discriminatory recruitment practices.”
No single applicant should be singled out, and no assumptions should be made about an applicant’s perceived right to work. Questions relating to immigration should be asked only for the purpose of determining whether or not a person has valid immigration clearance for the role.
Many employers also monitor the diverse characteristics of applicants, by asking voluntary questions about gender, disability and ethnicity.
These questions are justified because they help an organisation review its recruitment procedures and ensure that they are targeting a sufficiently diverse pool of potential job applicants. The data collected may also be used as evidence to defend any accusation of discrimination that is made against the employer.
Opportunity to produce documents
All applicants should be given sufficient opportunity to prove their right to work. A successful candidate should, where possible, have a job kept available for them while they procure the documents that demonstrate their right to work.
Where a job applicant is unable to produce documents as required, employers should first make enquiries with immigration officers before assuming that the applicant is an illegal migrant.
Byron, which says it carries out “rigorous right to work checks”, said it “cooperated fully” with the Home Office, after it was advised that some of its workers were using counterfeit documents.
Employers are expected to take reasonable steps to verify the authenticity of the documents produced for this purpose, although they are not required to be experts on detecting forgeries.
An applicant who provides valid and acceptable right to work documents should not be treated less favourably than other job applicants, even if their right to work to the UK is time-limited.
With immigration high on the agenda, particularly following the Brexit vote for the UK to leave the EU, employers should prepare themselves to be put under scrutiny at any point”
In the case of Osborne Clarke Services v Purohit a law firm rejected the application of a non-EEA job applicant based on firm policy not to employ any person who requires the permission of the (then) UK Border and Immigration Agency to work.
The Employment Appeal Tribunal held that the defendant could not justify the policy on an objective basis. The policy was held to be indirect race discrimination.
Similarly, any employee who has established their entitlement to work on a time-limited basis should not receive unfavourable treatment with respect to the terms of their employment, promotion, training opportunities or any other benefits, facilities or services.
As the only exception to this rule, those with limited permission to work in the UK are required to produce documents to their employer at various intervals, for an employer to avoid civil penalty.
Maintaining immigration compliance
Some UK employers will be disinclined to hire foreign staff because of the risk and the additional administration involved.
However, any potential bias shown towards employees or job applicants on the basis of their nationality or appearance may be used as evidence against an employer in discrimination proceedings.
With immigration high on the agenda, particularly following the Brexit vote for the UK to leave the EU, employers should prepare themselves to be put under scrutiny at any point. Preparation remains the best form of defence.
Regular immigration audits of your organisation’s processes, policies and documentation will help you to both identify and manage risks, and minimise the threat of non-compliance including claims for discrimination.