Clampdown on illegal working could lead to discrimination claims

The Government has accepted that employers who try to ensure they don’t hire illegal workers could run the risk of laying themselves open to claims of racial discrimination.

New penalties for employing illegal workers come into force on 29th February. Employers could face a two-year jail term or a fine of up to £10,000 for each illegal worker they hire.

Immigration Minister Liam Byrne said:

"Illegal working attracts illegal migrants and undercuts British wages. That's why we're determined to shut it down.”

The law will be enforced by the Border and Immigration Agency which already undertakes regular operations against illegal working.

The present law provides employers with a statutory defence if they check and record certain specified documents belonging to potential employees.

This defence will continue under the new system. Employers will be able to obtain a statutory excuse from payment of a civil penalty by checking their prospective employees' documents.

However, if employers wish to retain the statutory excuse they will be required to undertake repeat document checks at least once a year for employees who have limited leave to enter or remain in the United Kingdom. As is currently the case, the excuse will not apply where an employer knows that they are employing an illegal migrant worker.

The Government is concerned that in attempting to make the necessary checks some firms may leave themselves open to claims of racial discrimination. The Border and Immigration Agency has offered the following advice:

“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 United Kingdom.

“Employers who refuse to consider anyone who looks or sounds foreign are likely to be unlawfully discriminating on racial grounds. If document checks are carried out only for prospective employees who by their appearance or accent seem not to be British, this too may constitute unlawful racial discrimination.

“Where complaints of racial discrimination are upheld by a Tribunal, employers can be ordered to pay compensation for which there is no upper limit. Employers have a legal duty under current race relations legislation to avoid unlawfully discriminating on racial grounds and are therefore advised to undertake document checks on every prospective employee. The best way for employers to make sure that they do not discriminate is to treat all job applicants in the same way at each stage of their recruitment process.”

Employers could be forgiven for thinking they face a legal minefield whichever way they turn but with the potential penalties so high it is vital that correct procedures are followed.

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