Legal Article - Employment Law

Preventing Discrimination during Recruitment

In respect of special permissions for migrant workers, the best way to ensure you do not discriminate racially is to treat all applicants in the same way at each stage of the recruitment process.

You may ask for a document at any stage, but if you ask for a document from one applicant make sure you ask for one from all applicants being considered at that stage.

You may find it most convenient to ask for 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.

If you ask applicants to complete an application form you could ask them at that stage whether they would be able to produce one of the documents which fulfil the necessary requirements.

It is necessary to keep a record of a document seen. It is not appropriate to retain original documents belonging to an employee unnecessarily unless the employment is for a very short duration i.e. a day or less, and there are facilities for keeping the document safe during the period.

Normally the full document should be copied. However, if a passport or other travel document is being copied, only the

ē front cover and any pages giving personal details bearing a photograph of the holder of the passport or showing the nature of the bearer.

ē the page showing the endorsement, which confirms that, the holder of the passport is currently permitted to work needs to be copied. The potential employee could be asked to obtain photocopies, but any copy should be compared with the original document.

The employer must decide whether a document appears to relate to a person. This is a matter of individual judgement, but if a document includes a photograph it may be obvious that it relates to the person who possesses the document.

In considering whether those documents which do not include a photograph relate to the person you may wish to consider whether the information on the document is accurate in comparison to other information about the application which is available to you.
If there appears to be some inconsistency you will probably want to ask the person for an explanation.

Duplicate documents should be kept while the employee is employed and for at least six months after they have left the employment.

If the original document is retained because the employment is for a day or less and then returned to the employee, the six-month period does not apply.

Part 2 of the P45 must, as at present, be retained for at least three years in order to comply with Inland Revenue regulations.

Once a relevant document has been checked and copied where necessary before taking on a new employee, there is no requirement for an employer to do anything else, even if a personís permission to be in the UK is not yet permanent.

If someone cannot produce one of the required documents the employer should not take that person on, as there will be no protection against conviction if the person is not entitled to work.

People who appear to be British (e.g. white Anglo-Saxon) should not be employed if they do not have documentation if other applicants are not employed on that basis. Otherwise racial discrimination may occur.

If there are any doubts about whether a document seen will provide a defence the Government has established a special helpline facility.
The helpline does not give personal information about an individual, nor provide advice on matters relating to employment law, work permits or the avoidance of racial discrimination.

Published: 24 Mar 2011

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