The decision, on 10 May 2004, of the Employment Appeal Tribunal (EAT) in the case Olatokun -v- Ikon Office Solutions, casts valuable light on the issues facing employers in providing themselves with a defence against prosecution for employing a person who is not entitled to work in the UK.
The Regulations that describe how employers can provide themselves with a defence against prosecution have changed from 1 May 2004. (See Newsletter of 26 March 2004). In some cases it is now necessary for employers to check two documents in order to obtain evidence of entitlement to work in the UK. However, as the events in this case occurred during 2003, the former rules applied, namely that the employer should ask for and examine one relevant document, such as a passport or an official document showing the person's National Insurance Number.
Ms. Olatokun was born in Nigeria and is a Nigerian national. However, the case was not about whether she was entitled to work in the UK, or whether the employer could be prosecuted for having engaged an illegal immigrant. Although it was not established by the EAT, and did not need to be established, it appears that Ms. Olatokun was working legally in the UK and that the employer was not at risk of prosecution.
Rather, Ms. Olatokun made a claim of direct racial discrimination against the employer on the grounds that the employer's procedures were discriminatory because they did not require all employees to provide documentary evidence of their right to work in the UK. The employer's consistent practice was to ask all job applicants to complete a questionnaire and, if an applicant's place of birth was outside the UK, the passport or other document was then requested. In the case of Ms. Olatokun, she had failed to complete the questionnaire given to her when she started the job and it was four months later that the employer realised and asked her to complete a new questionnaire. On seeing that she had been born in Nigeria, they asked to see her passport. She failed to produce it and, six weeks later, the employer dismissed her.
In the circumstances of the case, the EAT ruled that the employer's procedures had not been discriminatory, as the procedure was followed for all job applicants and all applicants who indicated that they had been born abroad were asked to provide the necessary documentary evidence. However, the EAT highlighted the Asylum and Immigration legislation that states that an employer commits an offence by recruiting someone not entitled to work in the UK and that, in order to provide a defence against prosecution, the relevant document must be produced before the employment begins. It is clear that, if the employer had been prosecuted, the recruitment procedure would not have provided the necessary defence, even though it was decided by the EAT that it was not discriminatory.
Employers must, therefore, give consideration to the two issues highlighted by this case,
the one or two documents required as evidence of entitlement to work in the UK should be produced before the applicant starts work, and
the procedures followed must be applied consistently to all applicants in order to avoid a claim of racial discrimination.
By way of a reminder, the Home Office Code of Practice states:
"You may ask applicants to provide one of the specified documents at any stage before they start work. Depending on your recruitment processes, you may find it most convenient to request a document from all those called to a first interview, or just from those called to a second interview, or only from the person chosen to fill the vacancy. It is perfectly satisfactory to ask for a document only from the person chosen to fill the vacancy if that is most administratively convenient. But if you ask for a document from one applicant make sure you ask for a document from all applicants being considered at that stage."
Summary: The existing rules requiring employers to check, before engaging a new employee, that the person is allowed to work in the UK are to be strengthened from May 2004. In many cases, job applicants will have to produce two forms of documentary evidence. Recruitment procedures must be amended accordingly, so that the same checks are performed for every job applicant, not simply those applicants who appear to be foreign.
The Home Office has proposed increases to the fees for work permits and sector-based scheme applications. The current fees, £95 and £74, are likely to increase in May/June 2004 to between £155 and £180 in order for them to fund fully the cost of the services of Work Permits (UK).
This is the name of a new website developed by the Home Office to provide a 'one-stop shop' for foreign nationals and for employers considering employing them. The site includes information on obtaining work permits and guidance on preventing illegal working and
reporting illegal workers.
(Source: www.workingintheuk.gov.uk )
...back to 28 November 2003
Under the provisions of the Immigration and Asylum Act 1996, it is a criminal offence to employ someone who is 16 or over and is not entitled to work in the UK. Employers have a statutory defence against prosecution if, before the start of employment, they check and record one of the defined documents that confirm the prospective employee's right to work in the UK. These documents include
form P45, form P60, or a payslip issued by the previous employer, showing a valid (not a temporary) National Insurance Number
a National Insurance Number card
a passport showing the person as a British citizen or having the right of abode in the UK
a birth certificate issued in the United Kingdom or Republic of Ireland.
Documents such as a driving licence, marriage certificate, National Health Service card, credit/debit card, bank statement or utility bill are not permitted.
Due to the prevalence in fraudulent documents in circulation, the Home Office are consulting on a number of proposed changes to the documents that may be accepted by employers to provide them with their statutory defence. The intention is to provide two lists of documents; the first will be documents that may be accepted on their own as evidence; the second will be documents of which two must be checked and recorded by the new employer.
The proposed lists include the following documents:
Documents, of which only one will be required
one of a number of defined passports
a national identity card issued by a State in the European Economic Area
one of a number of defined residence documents and permits
Documents, of which two will be required
A document issued by a previous employer, the Inland Revenue or other relevant Government office, showing the person's NI number, and any one of
a birth certificate issued in the UK, Channel Isles or Isle of Man
a certificate of registration or naturalisation as a British Citizen
one of a number of defined Home Office letters or immigration documents
A work permit or other document issued by Work Permits UK, and any one of
a passport or other travel document endorsed to show that the holder is permitted to take the work permit employment in question
a letter issued by the Home Office to the holder, confirming the same.
The Overseas Labour Service is responsible for the processing of work permits. From 2 April 2001, the service changes it name to Work Permits (UK) to reflect more closely its core business. From that date, the web address will change to www.workpermits.gov.uk. Work permits in Northern Ireland continue to be processed by the Training and Employment Agency, on 02890 257471. - Payroll Briefing 198 - 29 March 2001
For Payroll and Human Resource Professionals
