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.