UK: Recruitment – Employer’s Liability Under The Asylum And Immigration Act 1996 And The Race Relations Act 1974

With effect from 27^th January 1997, it became an offence for employers to hire anyone who is subject to immigration control, ie someone who does not have leave to enter or remain in the United Kingdom or has a condition precluding the person from taking up employment (s8 Asylum and Immigration Act 1996 ("AIA")). An employer who is guilty of hiring an employee illegally faces a fine of up to £5,000.

Employers can protect themselves by making checks on job applicants. S8(2) AIA 1996 provides that an employer has a defence if before employment, the employee is able to show one of a list of items evidencing the employee’s status. An employer does not commit a criminal offence if the employee is able to show to the employer documents issued by a previous employer (eg P45, P60, pay slips), the Inland Revenue, the Benefits Agency (eg National Insurance details), Contributions Agency or the Employment Service. Alternatively, the employer is not liable if the employee is able to show a passport evidencing no restrictions on the ability to take up work in the United Kingdom. An employer cannot however rely on the defence if it has actual knowledge (not a mere suspicion) that employment of the person constituted an offence notwithstanding the above.

Whereas employers have to be mindful of complying with immigration law, the process by which this is achieved must not fall foul of employment law namely, the Race Relations Act 1976 ("RRA"). S4(1) RRA makes it unlawful for an employer to discriminate on racial grounds in relation to the arrangements it makes for determining who should be offered employment or refusing or omitting to offer employment. This means that all job applicants regardless of race, ethnic or national origin or nationality should be treated equally. The protection applies to all job applicants within England, Wales and Northern Ireland (see BBC v Souster 2000 IRLR 150 where it has been held that there can be discrimination between the English and the Scots on grounds of national origins), those in the European Union and those outside the European Union. If an employer has unlawfully discriminated under the RRA, compensation is unlimited.

The Home Office has recently published a Code of Practice on Avoiding Racial Discrimination to assist employers in the recruitment process. The guidelines provide that

• Employers should not outrightly refuse to consider or reject a job applicant who looks or sounds foreign. It warns that the United Kingdom is increasingly ethnically diverse and people from ethnic minorities are British Citizens.

• Employers should not ask job applicants for their passport at the first instance by the appearance or accent of the person concerned if they only ask a British sounding or looking person for his/her National Insurance number.

• Employers are encouraged to treat all job applicants equally at every stage of the recruitment process. If the employer wishes to see a particular document, it should make sure that this applies to every candidate regardless of race.

• Employers should ask potential job applicants when filling out application forms if they would be able to supply any of the above documents if the company is to offer the job to the person after the selection process.

• Employers should "audit" their recruitment process and build in checks.

As a matter of good practice, employers are advised to obtain references from job applicants previous employer/s. This may provide some indication on the career history, nationality and immigration status of the employee and his or her ability to work in the United Kingdom. Further, employers should ensure that any offer of employment is conditional and subject to documentary evidence that the employee has no legal restrictions on working (as is already the case with the employment of senior executives who may be bound by restrictive covenants). That way, if the job offer is withdrawn for immigration reasons, the employer has a fair reason for terminating the contract of employment without facing liability for unfair dismissal and race discrimination.