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Foreign workers
wishing to work in Britain will be placed in five groups with highly
skilled workers in Tier 1 and those with lower qualifications in tiers 2
and 3. Students and temporary workers will be in tiers 4 and 5. Applicants
will need to achieve a certain number of points depending of their skills
and suitability before they will be given clearance to remain in the UK.
The proposal is that
employers wishing to hire workers in certain tiers will need to have a
sponsorship licence. The fees are still being set but it’s proposed they
should be between £300 and £1000 depending on the size of the firm.
Sponsoring firms will then be expected to inform the Border and
Immigration Agency of certain information which may include reporting to
them if the employer fails to turn up to work. The agency says it will
take compliance seriously and approach enforcement robustly.
The
present law provides employers with a statutory
defence against hiring
illegal workers if they
check and record certain specified documents belonging to potential
employees.
This
will continue under the new system. However, if employers wish to retain
the defence
they will be required to undertake repeat document checks at least once a
year for employees who have limited leave to enter or remain in the United
Kingdom. As is currently the case, the
defence
will not apply where an employer knows that they are employing an illegal
migrant worker.
The problem here is
that in making such checks employers could leave themselves open to
allegations of racial discrimination. Even firms that don’t employ or
intend to employ migrant workers maybe affected if they refuse to employ
the individual on the grounds of their race
The Government
recognises the dilemma and so the Border and Immigration Agency has
offered the following advice:
“It
must not be assumed that someone from an ethnic minority is an immigrant,
or that someone born abroad is not entitled to work in the United Kingdom.
“Employers who refuse to consider anyone who looks or sounds foreign are
likely to be unlawfully discriminating on racial grounds. If document
checks are carried out only for prospective employees who by their
appearance or accent seem not to be British, this too may constitute
unlawful racial discrimination.
“Where complaints of racial discrimination are upheld by a Tribunal,
employers can be ordered to pay compensation for which there is no upper
limit. Employers have a legal duty under current race relations
legislation to avoid unlawfully discriminating on racial grounds and are
therefore advised to undertake document checks on every prospective
employee. The best way for employers to make sure that they do not
discriminate is to treat all job applicants in the same way at each stage
of their recruitment process.”
Employers could be
forgiven for thinking they face a legal minefield whichever way they turn
but with the potential penalties so high it is vital that correct
procedures are followed.
Sally Laughton is an
employment law specialist at Andersons Solicitors in Nottingham. She can
be contacted directly by calling 0115 988 6736 or by emailing
Sally Laughton
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