Avoiding Race Discrimination When Carrying Out Immigration Checks

The Home Office has published a new code of practice providing guidance for employers on how to avoid race discrimination when carrying out pre-employment immigration checks.

The code on avoiding unlawful discrimination while preventing illegal working recommends that employers have clear written procedures for the recruitment and selection of all workers, based on equal and fair treatment for all applicants. It also recommends that:

• no assumptions should be made about a person’s right to work or immigration status on the basis of their colour, nationality, ethnic or national origins, accent or length of time they have been resident in the UK;
• the best way for employers to ensure they do not discriminate is to treat all applicants fairly and in the same way at each stage of the recruitment process. Employers should therefore ensure that they carry out statutory immigration checks for all prospective workers and not just those who, for example, are from an ethic minority or have a foreign accent;
• job applicants who produce acceptable documents showing a time limited right to work in the UK should not be treated less favourably during their employment, except that further right to work checks may be carried out as prescribed in the code of practice and guidance;
• questions should only be asked about an applicant’s or worker’s immigration status where it is necessary to determine whether their status imposes limitations on the number of hours they may work each week, the type of work they may carry out or on the length of time for which they are permitted to work; 
• if a person is unable to produce acceptable documents, the employer should not assume that they are living or working in the UK illegally. Employers should try to keep the job open for as long as possible in order to provide them with the opportunity to demonstrate their right to work, although they are not obliged to do so if they need to recruit someone urgently; and
• employers should as a matter of good practice monitor the diversity details of applications during the recruitment and selection process as this will help them know whether they are reaching a wide range of potential job applicants and the information can be used in reviewing recruitment procedures.

The new code, which will replace the 2008 version, came into force on 16 May 2014 and is supported by separate guidance and a code of practice on the civil penalty scheme for employers.  The Code has statutory force and may be taken into account by tribunals considering discrimination claims.