The boss dons kid gloves

A new Act to restrict the activities of illegal immigrants may tempt employers into breaking the race laws, writes Alison Clarke

By way of justifying the new employment provisions contained in section 8 of the Asylum and Immigration Act 1996, the Government has argued that the number of immigrants working illegally in this country "has risen significantly in recent years and is now a substantial problem". A Home Office spokeswoman said that "in 1995 about 10,000 people were picked up, many more than two or three years ago".

To encourage employers to take the problem more seriously, it has this week become a criminal offence to hire someone who is not allowed to work here. As the new offence applies only in the case of employees who start work on or after the law took effect, employers should not make checks on existing workers. To do so may leave them open to claims of racial discrimination. The maximum fine under section 8 is pounds 5,000 per worker, but there is no limit on compensation for unlawful race discrimination.

Alison Stanley, head of immigration at Bindman & Partners, solicitors, explained that under the previous law, "if someone is working illegally, it is the individual's look-out, not that of his employee". She said that, in theory, "if an employer knowingly hired someone, you could argue he was harbouring them, but it is unheard of for an employer to be prosecuted under the Immigration Act".

To establish a defence under the new Act, the employer has to ask for one of a number of documents specified in the Home Office "Guidance for employers", in order to verify the employee's work status before taking him on. These could include the applicant's passport, certificate of registration, birth certificate, national identity card, work permit or a document which states his National Insurance number, such as a P45 or a pay slip.

But, the guidance says "none of those documents should be assumed to confirm the identity of the person concerned". They will provide a defence only as long as they appear to relate to the applicant.

What the employer has to do, then, is to look at the document and decide whether it appears to be an original; whether it appears to him to relate to the person in question; and whether it appears to be one of the specified documents. The employer is not expected to investigate the authenticity of the document, just to decide whether it looks valid to him. Having done so, he must then keep a record of it.

None of the checks is compulsory, but if the employer does not make them, he will not be able to establish a defence under the Act. If, on the other hand, he does make them, he will be protected, even if it turns out that the person he hired was working illegally.

As a measure of the difficulties facing employers under the new Act - and despite the Government's arguments that the checks are straightforward - a telephone hotline has been set up, and about 2 million copies of the Home Office guidance have been sent to every employer on the Inland Revenue's mailing list.

Although the Government warns employers in its guidance not to discriminate against anyone who looks or sounds foreign, Ann Thomas of the Refugee Council is concerned that the legislation "could discourage employers from taking on asylum-seekers, if they have to go through time-consuming measures to cheek their immigration status". The council is also concerned that some employers will assume that asylum-seekers are not allowed to work, mainly because they do not always have a National Insurance number.

Claude Moraer, director of the Joint Council for the Welfare of Immigrants, has denounced the proposals as "unworkable and deeply discriminatory". He believes that "they came about for party political purposes, rather than because of any serious immigration problem in this country".

For its part, the Commission for Racial Equality (CRE) now seems reluctant to be drawn into the argument. Although highly critical of the proposals in its response to the Government's consultation document, the commission has kept its powder dry since the Act received royal assent last July. The issue of immigration is a hot potato for the CRE, which senses that it is at the edge of its statutory remit.

The commission has, however, prepared guidance for employers on how to comply with the Race Relations Act as well as the new legislation. It provides a list of "good practice recommendations" which suggests, among other things, that employers should establish clear, written procedures for recruitment and selection for all posts. It goes on to recommend that all relevant staff are made aware of the procedures and given effective training.

The Federation of Small Businesses says that for most of its members, the recommendations would be prohibitive, in terms of both time and money. The federation is opposed to the measures because "small businesses recruit through friends, recommendations or word of mouth ... They employ people over the phone. So they will be under a lot of pressure and will fall foul of the legislation." The federation tried and failed to persuade the Government to exempt employers with fewer than 20 workers.

But it was not just the FSB which was worried by the proposals when they were first given an airing at the end of 1995. They caused a storm of protest from all the main employers' organisations but, unlike the federation, the Institute of Directors and the Confederation of British Industry had no objection in principle to the measures, despite their concern about the damage they might do to race relations. And having secured a number of amendments, most notably that employers should not have to verify the authenticity of any documents produced, they withdrew their opposition.

After all the controversy that it has provoked, what now remains to be seen is whether section 8 will achieve what it set out to do. The only certainty is that it will remain deeply unpopular with the small businesses which now have to implement itn

The author is legal officer with the MSF union.

Start your day with The Independent, sign up for daily news emails
Lucerne’s Hotel Château Gütsch, one of the lots in our Homeless Veterans appeal charity auction
charity appeal
Arts and Entertainment
Tony Hughes (James Nesbitt) after his son Olly disappeared on a family holiday in France

Jo from Northern Ireland was less than impressed by Russell Brand's attempt to stage a publicity stunt

Scunthorpe goalkeeper Sam Slocombe (left) is congratulated by winning penalty taker Miguel Llera (right)
Have you tried new the Independent Digital Edition apps?
ebooksNow available in paperback
Arts and Entertainment
The Apprentice candidates Roisin Hogan, Solomon Akhtar, Mark Wright, Bianca Miller, Daniel Lassman
tvReview: But which contestants got the boot?
Life and Style
A woman walks by a pandal art installation entitled 'Mars Mission' with the figure of an astronaut during the Durga Puja festival in Calcutta, India
techHow we’ll investigate the existence of, and maybe move in with, our alien neighbours
Arts and Entertainment
Jim Carrey and Jeff Daniels ride again in Dumb and Dumber To
filmReview: Dumb And Dumber To was a really stupid idea
Arts and Entertainment
Sir Ian McKellen tempts the Cookie Monster
tvSir Ian McKellen joins the Cookie Monster for a lesson on temptation
Tourists bask in the sun beneath the skyscrapers of Dubai
travelBritish embassy uses social media campaign to issue travel advice for festive holiday-makers in UAE
Arts and Entertainment
Jennifer Saunders stars as Miss Windsor, Dennis's hysterical French teacher
filmJennifer Saunders and Kate Moss join David Walliams on set for TV adaptation of The Boy in the Dress
Life and Style
Nabil Bentaleb (centre) celebrates putting Tottenham ahead
footballTottenham 4 Newcastle 0: Spurs fans dreaming of Wembley final after dominant win
Jimmy Mubenga died after being restrained on an aircraft by G4S escorts
voicesJonathan Cox: Tragedy of Jimmy Mubenga highlights lack of dignity shown to migrants
Life and Style
Sebastian Siemiatkowski is the 33-year-old co-founder and CEO of Klarna, which provides a simple way for people to buy things online
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Ashdown Group: Helpdesk Analyst

£25000 per annum: Ashdown Group: An established media firm based in Surrey is ...

Ashdown Group: Java Developer - Hertfordshire - £47,000 + bonus + benefits

£40000 - £470000 per annum + bonus: Ashdown Group: Java Developer / J2EE Devel...

Ashdown Group: Head of Finance - Financial Director - London - £70,000

£70000 per annum: Ashdown Group: Head of Finance - Financial Controller - Fina...

Recruitment Genius: Business Development Executive - Nationwide - OTE £65,000

£30000 - £65000 per annum: Recruitment Genius: This small technology business ...

Day In a Page

Jeb Bush vs Hillary Clinton: The power dynamics of the two first families

Jeb Bush vs Hillary Clinton

Karen Tumulty explores the power dynamics of the two first families
Stockholm is rivalling Silicon Valley with a hotbed of technology start-ups

Stockholm is rivalling Silicon Valley

The Swedish capital is home to two of the most popular video games in the world, as well as thousands of technology start-ups worth hundreds of millions of pounds – and it's all happened since 2009
Did Japanese workers really get their symbols mixed up and display Santa on a crucifix?

Crucified Santa: Urban myth refuses to die

The story goes that Japanese store workers created a life-size effigy of a smiling "Father Kurisumasu" attached to a facsimile of Our Lord's final instrument of torture
Jennifer Saunders and Kate Moss join David Walliams on set for TV adaptation of The Boy in the Dress

The Boy in the Dress: On set with the stars

Walliams' story about a boy who goes to school in a dress will be shown this Christmas
La Famille Bélier is being touted as this year's Amelie - so why are many in the deaf community outraged by it?

Deaf community outraged by La Famille Bélier

The new film tells the story of a deaf-mute farming family and is being touted as this year's Amelie
10 best high-end laptops

10 best high-end laptops

From lightweight and zippy devices to gaming beasts, we test the latest in top-spec portable computers
Michael Carberry: ‘After such a tough time, I’m not sure I will stay in the game’

Michael Carberry: ‘After such a tough time, I’m not sure I will stay in the game’

The batsman has grown disillusioned after England’s Ashes debacle and allegations linking him to the Pietersen affair
Susie Wolff: A driving force in battle for equality behind the wheel

Susie Wolff: A driving force in battle for equality behind the wheel

The Williams driver has had plenty of doubters, but hopes she will be judged by her ability in the cockpit
Adam Gemili interview: 'No abs Adam' plans to muscle in on Usain Bolt's turf

'No abs Adam' plans to muscle in on Usain Bolt's turf

After a year touched by tragedy, Adam Gemili wants to become the sixth Briton to run a sub-10sec 100m
Calls for a military mental health 'quality mark'

Homeless Veterans campaign

Expert calls for military mental health 'quality mark'
Racton Man: Analysis shows famous skeleton was a 6ft Bronze Age superman

Meet Racton Man

Analysis shows famous skeleton was a 6ft Bronze Age superman
Garden Bridge: St Paul’s adds to £175m project’s troubled waters

Garden Bridge

St Paul’s adds to £175m project’s troubled waters
Stuff your own Christmas mouse ornament: An evening class in taxidermy with a festive feel

Stuff your own Christmas mouse ornament

An evening class in taxidermy with a festive feel
Joint Enterprise: The legal doctrine which critics say has caused hundreds of miscarriages of justice

Joint Enterprise

The legal doctrine which critics say has caused hundreds of miscarriages of justice
Freud and Eros: Love, Lust and Longing at the Freud Museum: Objects of Desire

Freud and Eros

Love, Lust and Longing at the Freud Museum