Employers have a duty under the Immigration, Asylum and Nationality Act 2006 to prevent illegal working in the UK by carrying out pre-employment immigration checks. However, carrying out such checks on prospective employees who appear not to be British citizens on the basis of their colour or ethnic or national origins risks breaching an employer’s duty not to discriminate on the basis of race under the Equality Act 2010. So what is the answer?

According to a draft Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working (the “Code”) published in April 2014, employers are advised not to make assumptions about a person’s right to work or immigration status on the basis of their colour, nationality, ethnic or national origins, accent or the length of time they have been resident in the UK. Rather, employers should adopt and make available clear written procedures and conduct pre-employment immigration checks on all prospective employees. Candidates should also not be treated less favourably if they produce acceptable documents showing a time-limited right to work in the UK, either during recruitment or subsequent employment.

Once in force, the Code will be taken into account by courts and tribunals when assessing complaints from prospective employees that they have been discriminated against because of their race. The message therefore is to ensure that all applicants are treated fairly and in the same way at each stage of the recruitment process.

View the draft Code.