The Immigration, Asylum and Nationality Act 2006 comes into force on 29 February, which will introduce stricter penalties for employing illegal workers. Solicitor Laura Mitchell explains the implications for employers.

The government has recently revealed that more than half of the new jobs created under Labour since 1997 have gone to foreign workers and, for months now, the debate on immigration has barely left the front page of British newspapers.

While the government continues to battle over the merits of ‘permits’ and ‘points-based systems’, many UK employers (and, indeed, local authorities) are struggling with the very real challenges presented by an influx of job applicants from overseas.

From 29 February 2008, the Immigration, Asylum and Nationality Act 2006 will come into force, setting a stricter regime for employing overseas workers, so it is now more important than ever for employers to be aware of their obligations. Prior to these changes, the law required employers to ensure that their employees were entitled to work in the UK.

Given that it was a criminal offence to employ an illegal worker, an employer could be fined up to £5,000 per illegal worker employed. However, the law provided an employer with a statutory defence if, before the start of employment, it had checked and copied certain documents which confirmed a prospective employee’s right to work (e.g. a passport, P45 or birth certificate). Many employers found this system to be confusing and unclear.

Under the 2006 Act the approach towards illegal working is even stricter, but hopefully clearer. Some of the key changes to the current law include a civil penalty for those that employ illegal migrant workers, of up to £10,000 per employee. However, the relevant employer will have a defence if it can prove that it has seen, copied and retained copies of original specified documents, before employing an individual.

Employers will also have to carry out further checks at specified intervals, to ensure the employee’s ongoing entitlement to work in the UK. In addition, employers will be subject to a criminal offence if they knowingly employ illegal migrant workers, which could result in employers being imprisoned for up to two years and/or receiving a fine.

Potential ‘rock and hard place’ for employers

With tougher sanctions on employing illegal migrants, there is a danger that some employers, particularly smaller organisations, might be deterred from recruiting overseas. Some employers might feel that the checks are too much of a burden and that the penalties for getting it wrong are too ‘risky’. However, in doing so, employers could face a tribunal claim for discrimination. Anyone who believes that they have been discriminated against by an employer, prospective employer or an employment agency on the grounds of their religion, nationality and colour, or ethnic, racial, or national group, may bring a complaint before the Employment Tribunal.

In order to avoid a claim, prospective employers must ensure that they apply the same standards to UK nationals and to migrant applicants, in relation to recruitment and selection for interview as well as the terms and conditions on which workers are to be employed.

In the past, some employers have been wary about undertaking checks on workers who they believe are not British citizens, for fear that this in itself could be deemed discriminatory (for example on the basis of race or ethnicity). It is important to remember that the population of the UK is ethnically diverse. Many people from ethnic minorities in this country are British citizens and many non-British citizens from black and minority ethnic communities are entitled to work here.

Therefore, it must not be assumed that someone from an ethnic minority is an immigrant, or that someone born abroad is not entitled to work in the UK. The government will be introducing a Code of Practice alongside the new legislation, which will assist employers generally with the new procedures.

Guidance to avoid discrimination

In order to avoid discrimination, it is recommended that employers take the following steps:

• Have clear written procedures based on the requirements of the 2006 Act for the recruitment and selection of all staff, founded on equal and fair treatment for all applicants.
• All job selections should be on the basis of suitability for the post. Employers should ensure that no prospective job applicant is discouraged or excluded, either directly or indirectly, because of his or her personal appearance or accent.
• Employers should not make assumptions about a person’s right to work or immigration status on the basis of their colour, race, nationality, or ethnic or national origins, or the length of time spent to date in the UK.
• All applicants should be treated in the same way at each stage of the recruitment process e.g. explaining on the application form that all short-listed applicants will be asked to produce certain specified documents, showing their entitlement to work in the UK.
• Once a person who has limited leave to remain in the UK has established their initial and ongoing entitlement to work, they should not be treated less favourably during their employment. This includes the terms of employment provided, opportunities for training, promotion or transfer, benefits, facilities or services, or by dismissing the worker or subjecting them to some other detriment, other than the repeat checks.

Employers should also ensure that they implement a clear policy on equal opportunities, discrimination and harassment, in order to promote good relations between employees of different religions and racial groups. This may, in addition, require training not only for those charged with recruitment, but also the wider workforce who will work alongside the new recruits.

It remains to be seen what the impact of the new legislation will have on the workplace. Employers, at the very least, need to understand the scope of the new penalties and take steps as soon as possible to prepare for the forthcoming changes.

Laura Mitchell is a solicitor in the employment department at Clarion Solicitors.