The Home Office has announced an open consultation on proposed amendments to its code of practice for employers under section 23(1) of the Immigration, Asylum and Nationality Act 2006 (the Code). The Code has been approved by the Secretary of State and laid before Parliament. It provides practical guidance to employers on avoiding unlawful discrimination when complying with their legal duty to conduct “right to work” checks. The deadline for responses was 8pm on 25 February 2022.
The Equality and Human Rights Commission and the Equality Commission for Northern Ireland have been consulted regarding the contents of the Code, in accordance with section 23(2) of the Immigration Asylum and Nationality Act 2006.
Who is the Code aimed at?
Employers in England, Scotland, Wales and Northern Ireland must adhere to the Code, in addition to organisations such as employment businesses and employment and recruitment agencies. The Code also applies to public authorities.
What does the Code address?
The purpose of the Code is to ensure that employers do not unlawfully discriminate against employees contrary to the Equality Act 2010 and/or relevant legislation in Northern Ireland when complying with the duty to prevent illegal working and, in particular, when carrying out “right to work” checks when recruiting or employing people.
The Code addresses discrimination (both direct and indirect), fair recruitment processes for those with an entitlement to work in the UK, conducting right to work checks and victimisation/harassment.
How can employers avoid discrimination?
The proposed amendments provide practical examples best practice for employers. For example: employers should be consistent in how they conduct right to work checks on all prospective employees; they should ensure that job selections are made on the basis of suitability for the post; and should ensure that no prospective job applicants are discouraged or excluded, either directly or indirectly, because of known or perceived protected characteristics.
Employers should further not: discriminate when conducting right to work checks; or only check the status of those who appear to the employer likely to be migrants. Finally, they should not make assumptions about a person’s right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent, surname or the length of time they have been resident in the UK.
When will the amended Code apply?
The new version of the Code will apply to all employment commencing on or after 6 April 2022. It will also apply where a repeat check on an existing worker is required on or after 6 April.
Information for employees?
The Code explains how employees can evidence their right to work. It additionally stipulates that employees should not be offended if an employer asks them to evidence their right to work. Finally, the Code outlines the steps an employee can take if they feel that their employer has acted in a discriminatory manner.
Preventing illegal working is a requirement for employers. However, to minimise the risk of discrimination claims being brought, employers must ensure that their recruitment processes are fair. The Code must be adhered to by employers and therefore the practical guidance provided should be carefully considered, with any necessary changes being implemented as soon as possible.
If you have any questions or would like assistance with any aspect of the recruitment process, our PRM team would be happy to assist.