Recruitment - Employer's Liability Under The Asylum And Immigration Act 1996 And The Race Relations Act 1974

With effect from 27th January 1997, it became an offence for employers to hire anyone who is subject to immigration control, ie someone who does not have leave to enter or remain in the United Kingdom or has a condition precluding the person from taking up employment (s8 Asylum and Immigration Act 1996 ("AIA")). An employer who is guilty of hiring an employee illegally faces a fine of up to 5,000.

Employers can protect themselves by making checks on job applicants. S8(2) AIA 1996 provides that an employer has a defence if before employment, the employee is able to show one of a list of items evidencing the employee's status. An employer does not commit a criminal offence if the employee is able to show to the employer documents issued by a previous employer (eg P45, P60, pay slips), the Inland Revenue, the Benefits Agency (eg National Insurance details), Contributions Agency or the Employment Service. Alternatively, the employer is not liable if the employee is able to show a passport evidencing no restrictions on the ability to take up work in the United Kingdom. An employer cannot however rely on the defence if it has actual knowledge (not a mere suspicion) that employment of the person constituted an offence notwithstanding the above.

Whereas employers have to be mindful of complying with immigration law, the process by which this is achieved must not fall foul of employment law namely, the Race Relations Act 1976 ("RRA"). S4(1) RRA makes it unlawful for an employer to discriminate on racial grounds in relation to the arrangements it makes for determining who should be offered employment or refusing or omitting to offer employment. This means that all job applicants regardless of race, ethnic or national origin or nationality should be treated equally. The protection applies to all job applicants within England, Wales and Northern Ireland (see BBC v Souster 2000 IRLR 150 where it has been held that there can be discrimination between the English and the Scots on grounds of national origins), those in the European Union and those outside the European Union. If an employer has unlawfully discriminated under the RRA, compensation is unlimited.

The Home Office has recently published a Code of Practice on Avoiding Racial Discrimination to assist employers in the recruitment process. The guidelines provide that

Employers should not outrightly refuse to consider or...