Recruitment requires constant diligence

Few topics have generated as much heated public comment recently as that of immigration, with its inescapable links to the even more emotive subjects of asylum and terrorism.

The recent expansion of the European Union has led to some very substantial economic migration, especially from the Eastern European states to Germany, Italy, Spain and the UK, and the future holds the prospect of more, from Romania, Bulgaria, and later perhaps Turkey.

Whether this is good news or bad news is more often a reflection of the prejudices of the speaker or writer, and only too rarely based on any sound analysis of the facts though, to be fair, those facts have been hard to come by.

For employers this is far from an academic debate. The Asylum and Immigration Act 1996, subsequently updated in 2004 for the accession of eight more countries (the A8) to the EU, places substantial responsibilities on employers with significant criminal penalties for their breach.

Increased vigilance

The textile care industry is no exception to the effects of increased vigilance by the Home Office on the application of this Act, with some companies recognising (to their embarrassment but not, as yet, their prosecution) the considerable constant diligence that needs to be applied to the recruitment process.

A few facts first to provide context. In October, the Office for National Statistics (ONS) published the most comprehensive assessment to date of the number of migrant workers in the UK, concluding that during 2005 alone more than 400,000 foreign workers came to the UK, such workers now making up more than 5% of the UK workforce; in fact 7.5% of the people living in Britain were born abroad. Our nation has seen occasional surges in immigration before, over hundreds of years, but not perhaps with the suddenness that modern transport can deliver.

It will come as no surprise to our industry that 56% of the A8 migrants have come from Poland, nor that 82% of those registering in the first two years following the 2004 accessions were aged between 18 and 34.

For an industry that has struggled for some time to recruit willing and hard working employees at or about the National Minimum Wage, this has proved a boon.

The Home Office, including the Immigration and Nationality Directorate (IND), has come under continuous and intense pressure for some time with the Home Secretary admitting some divisions were not “fit for purpose”, and even illegal migrant workers being found employed at the IND offices in Croydon, albeit through an agency.

Not surprisingly a thorough-going review of the IND’s activities and effectiveness has been put in train to rebuild confidence.

This all helps to show that avoiding employing illegal workers is not exactly a straightforward matter – equally, it is not “rocket science” and is far more dependent on perspiration than it is on inspiration.

The IND website (www.ind.homeoffice.gov.uk) contains detailed advice for employers on their legal obligations, what documentary evidence should be requested from potential employees and identifies the employer’s helpline (0845 010 6677) for further advice and assistance.

I cannot understate the importance of every employer having not only a clear understanding of these obligations, but also a senior member of the team responsible for ensuring that the proper procedures are followed without exception.

The website contains the booklet entitled “Comprehensive guidance for UK employers on changes to the law preventing illegal working”.

This booklet sets out not only guidance on the processes to be followed but also images of the sort of documents needed and a full guide to UK Government stamps and endorsements.

As forgeries are often the currency of illegal working, you are required to satisfy yourself that it is a valid document, the potential employee is the rightful holder, and that it allows that person to do the work you are offering. Simple checklists make this somewhat daunting procedure a lot easier.

A brief summary of the law identifies that although it is a criminal offence to employ someone who has no right to work in the UK, an employer who has conducted all the necessary checks thoroughly, and recorded them, is most unlikely to be taken to court.

The documents necessary to validate an employment application (and please note they must be originals, not photocopies) have changed since the introduction of the 2004 law, and are now contained in two lists.

Most potential employees will probably be able to provide a “List 1” document, namely a passport from the UK, or one from one of the other European Economic Area countries, or travel, residence or registration documents issued by or endorsed by the Home Office.

You are required to thoroughly check the validity of this document but, if it passes this scrutiny, that is the sole document required. Make a photocopy or scan of the original document and keep on file.

If a “List 1” document is not available, the potential employee is required to provide one of the specific combinations of two documents from “List 2”.

The range and combination of these documents is too lengthy to list here, but includes such things as papers issued by a previous employer, the Inland Revenue or the Job Centre which identify a National Insurance number of the person named in the document; appropriate birth certificates, immigration documents, work permits or travel documents endorsed by the Home Office, or a letter issued by the Home Office.

Be warned – a National Insurance number on its own is not sufficient, and you need to check the number against the guidelines to ensure that it is a valid and permanent one.

If the documents required are not provided by a potential employee, or you are not satisfied in any way with them, you should refuse to employ that person. It is very unwise to employ them on a temporary basis until the documents are provided.

This last point goes to show how rigorous you have to be about these processes, and when new employees are really hard to find for certain jobs how disciplined you have to be; often a useful backstop is to ensure that no-one can be added to your payroll without the appropriate senior manager’s signature that these processes have been satisfactorily completed.

Because of the gross underestimation of the numbers of immigrants who were to come from the A8 countries after accession in 2004, it has been decided to allow only controlled access to Romanian and Bulgarian nationals after those countries join the EU in January 2007, particularly in the low-skilled occupations, with this situation to be reviewed in 12 months’ time.

In addition to the IND website quoted above, and the Home Office Helpline number, there are several other very useful sources of information and advice.

There is a simple but effective interactive tool on the Business Link website (www.businesslink.gov.uk) and a Home Office website (www.workingintheuk.gov.uk) which gives background information.

However, if the problem is more serious the following websites could help:

www.oisc.gov.uk is the Organisation of Immigration Advisers site providing a list of registered advisers across the UK; and

www.lawsociety.org.uk/choosingandusing/findasolicitor.law – type “Immigration” in the subject index.

One other associated area when employing foreign nationals that should receive brief mention is that of Work Permits and the Worker Registration Scheme, which have protocols all of their own and are handled by the Immigration and Nationality Enquiries Bureau (INEB), accessed from the workinginthetheuk.gov.uk website above or on 0870 606 7766.

Discrimination

There is one final dimension to the process of employing immigrants which cannot be forgotten – discrimination on the grounds of race, ethnic or national origin, colour or religious belief.

It is only too easy when making these document checks to betray unconscious assumptions about anyone who looks or sounds foreign, but that is almost certainly unlawful discrimination.

The problem is best avoided by treating all applicants in the same way at each stage of the process.

Fortunately the Comprehensive Guidance booklet quoted above gives some excellent examples demonstrating how easy it is to give the impression of discrimination in this way, and advice on how to avoid those pitfalls.

By the same token you should not assume a person is an illegal worker if they can’t produce the documents required – if you are rejecting their application make it clear why, and suggest they go to the Citizens Advice Bureau for further advice.

There is a Code of Practice specifically written to advise employers on how to comply with these complex immigration rules without discriminating unlawfully, and it can be accessed on the IND website or ordered from their Employers Helpline.

This last paragraph goes to emphasise how important it is that the necessary recruitment checks are made for every single appointment, that responsibility is vested in a senior manager to ensure the procedures are fully complied with, and that everyone involved in your company’s recruitment activities knows of these requirements, and follows them assiduously.

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