Chapter 16Employing labourImmigration, Asylum and Nationality
Act 2006
This Act received Royal Assent on 30 March 2006. It
includes new measures to prevent illegal working. Under
s 8 of the Asylum and Immigration Act 1996 (see above)
it is currently a criminal offence punishable with a fine
of up to £5,000 to employ a person who does not have
permission to live and work in the UK. This Act repeals
s 8 and introduces a new scheme of civil penalties
including fines of up to £2,000 per illegal employee and
a possible two-year custodial sentence and unlimited
fine for those found knowingly to have used or exploited
illegal workers. The employer may be excused from pay-
ing a penalty if it complies with the requirements of an
order to be made by the Home Secretary. The onus is on
the employer to satisfy the Home Secretary that it can
establish an excuse for non-payment.
The Home Secretary is given power by the Act to
issue a code of practice for employers on how to avoid
unlawful racial discrimination when applying these
provisions.
Other matters relevant to recruitment
Criminal records
The government has set up the Criminal Records Bureau
(CRB) under the provisions of Part V (ss 112–127) of
the Police Act 1997. It is put forward as a one-stop-shop
for those going through recruitment and selection pro-
cesses to access a variety of information sources to ascer-
tain criminal records.
The Bureau is based in Liverpool and there are differ-
ent levels of information that can be requested from the
CRB as follows:
■Standard disclosure and enhanced disclosure. These are
intended for those seeking to obtain posts involv-
ing regular contacts with children and/or vulnerable
adults.
■Basic disclosure. This will show current convictions
only that are not spent by the passage of time under
the Rehabilitation of Offenders Act 1974. The relev-
ant times are as follows:
- an absolute discharge – six months;
- a conditional discharge – one year or for the period
of the order if longer; - an attendance centre order – one year after the
order expires; - a fine or community sentence – five years;
- a custodial sentence up to six months – seven years;
- a custodial sentence between six months and 30
months – ten years.
Other sentences, e.g. four years for robbery, are never
subject to rehabilitation. Employers have to register with
the CRB at a current cost of £300 and disclosure is at the
rate currently of £31 per request. As regards standard
disclosures and enhanced disclosures, these will be sent
to the registered organisation and the applicant for a
post who should be, in proper practice, an applicant
who has been offered the post subject to the request. The
potential employer pays the fee and advertisements
should state that successful candidates will be asked to
apply for a disclosure.
So far as the basic disclosure is concerned, this is sent
only to the applicant for the post and it is a matter for
him or her on receipt whether to show it to the potential
employer, though there can be withdrawal of the offer in
such a case. Employers must abide by a code of practice
drawn up by the CRB and must also have a policy in
place over the recruitment of ex-offenders.
Disclosure that is not within the terms of the code
could result in the employer falling foul of the Data Pro-
tection Act 1998 and/or the Human Rights Act 1998.
Further information is available at: http://www.
crb.gov.uk and from the CRB Information Line 0870
9090 811.Basic disclosure postponed
A press release of 27 February 2003 is to the effect that,
following a thorough review of the CRB by an independ-
ent review team, the introduction of the above basic
level of checks is being postponed until demand has
been fully met for the two higher levels of standard and
enhanced disclosure. These higher level checks have
been available since March 2002. Basic disclosure is still
not available.Medical examinations
It was held in Bakerv Kaye(1997) that a doctor retained
by an employer to carry out pre-employment medical
assessments on prospective employees owed a duty of
care to those examined to take reasonable care in carry-
ing out his examination and assessment of suitability for
employment. If he fails to do so he may be sued by the
prospective employee who is not, for medical reasons,
offered the job.
The above decision was reversed by the Court of
Appeal in the next case.529