Employers who have recruited, or may recruit, non-UK citizens must not
discriminate against them because of their nationality. But they must ensure
they don’t breach the Immigration and Asylum Act 1996, says Alison Gurden at
Beachcroft Wansbroughs
Who requires a work permit?
Most workers who are not:
– European Economic Area citizens
– Commonwealth citizens with a right of abode in the UK
– Individuals without automatic entitlement to work in the UK should obtain
a work permit. The employer should apply for this on behalf of the prospective
employee. If granted, the permit will apply to a particular job and employer,
and should not be transferred to another employer without authorisation.
When will a work permit be granted?
In general, permits are not granted for unskilled jobs or for
self-employment. The employer must show a genuine vacancy for an employee. In
addition, it must be shown that the person is suitably qualified or experienced
for that vacancy, and that there are no suitably qualified or experienced
"resident workers".
For intra-company transfers, the employer must show that the post requires
an established employee who has essential company knowledge and experience.
For how long will the permit be granted?
Permits may be issued for up to five years, and one that is granted for
fewer may be extended on application of the employer and the employee.
What if the work permit has expired?
An employee who is appealing against a permit extension refusal should
receive a letter from the Home Office confirming that they may continue to work
until their appeal is determined. But an employee whose permit has expired and
who is not appealing cannot work after the expiry date.
What about people already resident in the UK?
Residents of the UK, without permission to work indefinitely, will usually
require a work permit. Asylum-seekers may work in the UK if they have written
permission from the Home Office.
Employers’ potential criminal liability
Under Section 8 of the Immigration and Asylum Act 1996, it is a criminal
offence to employ a person who does not have permission to work in the UK.
The company or organisation, or individual officers of the company (such as
the HR director or manager) may face personal liability if they have acquiesced
in the employment of such a person. The offence may result in a fine of up to
£5,000.
It may be a defence for the company or organisation, or its officers, to
prove that the employee produced documentation showing entitlement to work in the
UK (see below). This defence will also apply if an employment agency had
guaranteed that a temporary employee’s relevant documents had been checked, and
the person was entitled to work in the UK.
How can an employer protect it’s self?
The employer faces two potential liabilities when employing a worker who is
not an EEA citizen: criminal liability under the Immigration and Asylum Act; or
civil liability under the Race Relations Act.
An employer refusing to employ an individual because of a belief that they
may not have permission to work in the UK could be subject to a discrimination
claim brought by the prospective employee in an employment tribunal.
The Home Office has issued a code of practice for all employers on the
avoidance of race discrimination in recruitment, which is intended to protect
the worker, while at the same time prevent illegal working. The code is not
binding on employers, but the tribunal should take it into account in any
discrimination proceedings.
Key elements of the code
The code specifies documentation that an employer may request in order to
confirm that the individual is entitled to work in the UK. This includes:
– A document issued by a previous employer, the Inland Revenue, the Benefits
Agency, the Contributions Agency or the Employment Service, stating the
individual’s national insurance number
– A passport or national identity card identifying the individual as a
British or EEA citizen, or having the right of abode in the UK
– A birth certificate issued in the UK, the Irish Republic, the Channel
Islands or the Isle of Man
– A letter from the Home Office indicating that the individual has
permission to work in the UK
– A work permit or other approval for employment issued by Work Permits UK
The code suggests that the employer should request that all applicants
produce one of the documents listed. But they should be given a choice of the
document they produce – to request that each applicant produce a P45 may
discriminate against those applicants who have not worked previously.
Failure to provide proof of employment status will not necessarily prevent
the applicant obtaining authority to work. In situations where the applicant is
not able to provide proof of authorisation to work, they should be referred to
a Citizen’s Advice Bureau or another such organisation as it may be the case
that they have not applied for authorisation.
If the position would have been offered to the applicant had they been able
to show entitlement to work, it should be left open for a reasonable period of
time, if possible, to allow the candidate to apply for permission to work.
What other obligations does an employer have towards a worker?
An employer should not dismiss an employee due to expiry of their work
permit if that person is still required for the job. It is advisable that the
employer assists the employee to obtain an extension, otherwise an action for
unfair dismissal may follow. Suspending a worker, until the determination of
their appeal against a permit refusal, could be classed as constructive
dismissal, particularly if suspension on pay does not include shift allowances
or regular overtime.
Alison Gurden is a member of the employment department at Beachcroft
Wansbroughs
Contact 020-7894 6038
Further information
– Information on work permits may be found at www.workpermits.gov.uk
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– Information on the code of practice may be obtained from www.ind.homeoffice.gov.uk
– Advice on avoiding race discrimination is available from the Commission
for Racial Equality at www.cre.gov.uk
