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Recruitment: how do you prevent illegal working, but avoid race discrimination?

Employers who knowingly employ illegal workers commit a criminal offence, and employers who negligently employ illegal workers risk a civil penalty, which is due to increase shortly to a maximum £20,000 per illegal worker.

Employers may have a defence to the civil penalty if they check certain original documents before the employment begins, and retain copies of these. Offers of employment should therefore be made subject to production of the necessary documents.

To help employers avoid race discrimination while preventing illegal working, the Home Office has issued a new draft Code of Practice which is expected to come into force later this month, replacing the previous Code issued in 2008. The Code advises, for example:

  • Carry out checks on all prospective employees at the same point in the recruitment process, and not merely those who appear to be of non-British descent.
  • Don’t make assumptions about a person’s right to work on the basis of their colour, nationality, ethnic or national origins, accent or the length of time they have been resident in the UK.
  • Don’t treat job applicants less favourably if they produce acceptable documents showing a time-limited right to work in the UK.
  • Only ask questions about immigration status where necessary to determine whether that status imposes limitations on, for example, hours or type of work.

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