Does rechecking only some of our employees to ensure they are able to work in the UK amount to discrimination? Matthew Whelan and Esther Smith advise.

The question:

In 2007 the company I work for started to vet new employees through a new vetting agency: they check the authenticity of passports and the right to work in the country for employees, whilst liaising with the Home Office on our behalf. This has proved to be very successful.

However, up until then we were using another vetting agency which, I have been told, weren’t as good as the newer one. As a result we would like to check ID documents for all employees who were vetted under the old system. In order not to create unnecessary workload for ourselves we have decided to only ask those who were employed before 2007 and checked by the old agency to re produce their passports and proof of right to work to be checked again. This includes employees from various nationalities.

As we are not asking all employees to undergo additional checks could our actions be seen as discriminatory? If so, how should we go about this without having to check all employees?
 

Legal advice:

Matthew Whelan, solicitor, Speechly Bircham

From the facts that you provide I think that the risk of this constituting unlawful race discrimination is low, although this depends on the circumstances and you should be alert to the risk and keep it under review.

An employer is unlikely to be guilty of direct discrimination (which is a form of discrimination which is not capable of justification) if it selects employees for additional checks on the basis that they commenced employment before a particular date, especially if it is possible to evidence a genuine and legitimate rationale for this. It would be different if the employees were selected on the basis of their race.

There is also a form of discrimination known as indirect discrimination.  This could be an issue if persons subjected to the extra checks happen to fall within a particular racial category protected under the discrimination rules. It is however possible to justify indirect discrimination, subject to the detail of your defence.

Your obligations in respect of checking a person has a right to work and obtaining relevant documentation are set out under the rules in force at the time you recruited the individual.  The rules have changed a number of times.

Prior to 29 February 2008, employers were only required to take copies of original documents (evidencing the prospective employee’s right to work) prior to them commencing their employment.  Where this was check was undertaken and copies of the documents were retained, an employer would be able to establish a statutory defence to a claim for inadvertently employing an individual illegally.  If you did not take copies of the documents before they commenced employment, you will not be able to establish a statutory defence by taking copies of the documents at this stage.

That said, if you now choose to request original documents evidencing the right to work of each employee that commenced their employment prior to 2007, in the event that any of those employees are found to be working illegally and you take swift action to terminate their employment (following appropriate procedures and observing employment laws in doing so), this could be taken into consideration by the UK Border Agency when considering appropriate action in respect of the breach of your obligations.

Furthermore, although this is not mandatory, it would be good practice to obtain the relevant documents which are required under the current rules in relation to all your existing employees, rather than limiting this in the way you suggest, although I appreciate there may be constraints on your ability to do this.

Matthew Whelan can be contacted at matthew.whelan@speechlys.com. For further information, please visit www.speechlys.com.

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Esther Smith, partner, Thomas Eggar