Firms told to review recruitment processes ahead of new UK code of practice

Harriet Dwyer, employment law expert at Pinsent Masons, said employers should take steps to ensure that they are familiar with the code which is set to come into force on 6 April 2022. It comes after the Home Office launched a public consultation earlier this month on the terms of a proposed code of practice for how employers can avoid unlawful discrimination while preventing illegal working.

All employers in the UK have a responsibility to prevent illegal working by conducting a simple right to work check on potential employees. Failing to carry out the check, which ensures that workers are not prevented from carrying out the work in question by reason of their immigration status, can carry a civil penalty of up to £20,000.

Employers must also make sure that they carry out checks fairly, consistently and transparently, and do not base their decision to check a potential employee’s right to work based on assumptions about their appearance, accent or country of origin. Doing so risks exposing a firm to employment tribunal claims for unlawful discrimination, warned Dwyer.

“The new draft code provides useful examples of conduct in this area which could amount to unlawful discrimination which its predecessor lacked and so our view is that it is much more descriptive and helpful to employers,” she said. “It includes a new section on how to avoid discrimination and guidance on what to do if a job applicant cannot evidence their right to work.”

“Employers should take steps to ensure that they are familiar with the code and review their recruitment process now in advance of the new code coming into effect to ensure the principles of the code are achieved. For example, employers should think carefully about at what stage of the process they conduct their right to work checks,” Dwyer added.

The draft code echoes the recommendation of the statutory code of practice from the Equality and Human Rights Commission that eligibility to work in the UK should be verified only at the final stages of the selection process to ensure that selection is based on merit alone. Dwyer said: “This can add complexity to the recruitment process and naturally we would recommend seeking appropriate legal advice on how you go about this process.”

The new code of practice follows the abolition of the resident labour market test (RLMT) in December 2020. The RLMT required employers to advertise jobs to British citizens, EEA and Swiss nationals residing in the UK and individuals with indefinite leave to remain before they opened recruitment to non-settled workers. “Since the RLMT was abolished, rejecting a candidate because of their immigration status or not accepting an applicant who requires a work permit could amount to discrimination,” Dwyer said.

“Employers should already be adhering to the 2014 code of practice on avoiding unlawful discrimination while preventing illegal working. But the updated code proposed by the Home Office sets out some helpful considerations for employers when looking to balance the conflict between the responsibility to prevent illegal working and any processes in this regard which could amount to unlawful discrimination,” she added.