Employing foreign workers legal Q&A

Q What are our obligations when employing foreign workers?

A As with everyone you employ, you must ensure each member of staff has the legal right to live and work in the UK in the job for which you are employing them. The Asylum and Immigration Act requires that you check that each of your employees has this right, and it is a criminal offence to employ someone who does not have the appropriate immigration permissions. Criminal proceedings can be taken against both the employer and any officer of that employer who is proved to have allowed someone to work illegally. You must therefore check that all of your employees have the legal right to work for you.

Q Should we amend our recruitment process given the recent terrorist activities?

A You should ensure that your process complies with the current legal requirements (see below). Amendments should only be made on a sound legal basis to reflect any changes to your legal obligations and not as a knee-jerk reaction, which could result in claims of race and/or religion or belief discrimination.

Q When should we start the checking process?

A Ask job applicants about their immigration status at the outset of the recruitment process. Where application forms are used, these should include as standard a question asking all applicants to confirm that they have the legal right to live and work in the UK. However, if this question is asked it must be asked of all candidates. If you were to selectively ask this question based on assumptions about a particular candidate’s race, nationality or ethnic origin, you could face a claim of race discrimination. Never assume that just because someone appears to be British they have the legal right to work for you.

Q Do we need to see evidence of the candidate’s right to work?

A Absolutely. The relevant legislation sets out a list of the documents that form acceptable evidence of a person’s legal right to work for you. There are two lists – List A and List B. Before an individual starts working for you, you must see originals of either one document from List A or two documents from List B. Take a photocopy of these documents and keep them securely on file for the duration of the person’s employment and for at least three years afterwards.

You must also carry out certain basic checks to satisfy yourself that the documents are genuine and relate to the person you are intending to employ. Remember to check that the photographs on any documents look like the candidate, the dates of birth on all documents are the same and consistent with the apparent age of the candidate, and that the documentation has not expired.

Guidance on the list of acceptable documents and the checking process employers are required to carry out before employing any candidate can be found on the Home Office’s online toolkit (www.employingmigrantworkers.org.uk). Provided you follow these steps, you should have a defence against criminal proceedings brought under the Asylum and Immigration Act for employing an illegal worker.

Q Are there any particular questions that we should/shouldn’t ask at interview?

A The ‘preventing illegal working’ code of practice issued by the government and intended to assist employers to avoid race discrimination in recruitment practice while seeking to prevent illegal working provides useful guidance as to the types of questions that should be asked during the recruitment process. More generally, questions should only relate to the role in question, and only in exceptional circumstances should you ask questions about a person’s political or religious beliefs, and then only when the envisaged role has a political or religious element. The questions relating to a particular role should be for all candidates.

Q What should we do if we become suspicious that a candidate may be involved in terrorist activities?

A Any concerns that you have should immediately be elevated to senior management in line with any internal policies. Ensure that you have as much information/documentation as possible to support your suspicions. You should consider reporting your concerns to the police and/or immigration authorities.

Q What other steps should we take?

A Any offers of employment must be conditional upon the satisfactory provision of all documentation required by the illegal working legislation to ensure the candidate has the right to work for you. Also ensure that you have robust procedures in place to ensure you comply with the conditions.

Andrew Osborne, partner & head of business immigration, Hammonds

Terror alert: legal experts warn of potential pitfalls in over-enthusiastic checking of staff

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