Work permits at a glance

first_img Comments are closed. Work permits at a glanceOn 11 Sep 2001 in Personnel Today Employers who have recruited, or may recruit, non-UK citizens must notdiscriminate against them because of their nationality. But they must ensurethey don’t breach the Immigration and Asylum Act 1996, says Alison Gurden atBeachcroft WansbroughsWho requires a work permit?Most workers who are not: – European Economic Area citizens – Commonwealth citizens with a right of abode in the UK – Individuals without automatic entitlement to work in the UK should obtaina work permit. The employer should apply for this on behalf of the prospectiveemployee. If granted, the permit will apply to a particular job and employer,and should not be transferred to another employer without authorisation. When will a work permit be granted? In general, permits are not granted for unskilled jobs or forself-employment. The employer must show a genuine vacancy for an employee. Inaddition, it must be shown that the person is suitably qualified or experiencedfor that vacancy, and that there are no suitably qualified or experienced”resident workers”. For intra-company transfers, the employer must show that the post requiresan established employee who has essential company knowledge and experience. For how long will the permit be granted? Permits may be issued for up to five years, and one that is granted forfewer may be extended on application of the employer and the employee. What if the work permit has expired? An employee who is appealing against a permit extension refusal shouldreceive a letter from the Home Office confirming that they may continue to workuntil their appeal is determined. But an employee whose permit has expired andwho is not appealing cannot work after the expiry date. What about people already resident in the UK? Residents of the UK, without permission to work indefinitely, will usuallyrequire a work permit. Asylum-seekers may work in the UK if they have writtenpermission from the Home Office. Employers’ potential criminal liability Under Section 8 of the Immigration and Asylum Act 1996, it is a criminaloffence to employ a person who does not have permission to work in the UK. The company or organisation, or individual officers of the company (such asthe HR director or manager) may face personal liability if they have acquiescedin the employment of such a person. The offence may result in a fine of up to£5,000. It may be a defence for the company or organisation, or its officers, toprove that the employee produced documentation showing entitlement to work in theUK (see below). This defence will also apply if an employment agency hadguaranteed that a temporary employee’s relevant documents had been checked, andthe person was entitled to work in the UK. How can an employer protect it’s self? The employer faces two potential liabilities when employing a worker who isnot an EEA citizen: criminal liability under the Immigration and Asylum Act; orcivil liability under the Race Relations Act. An employer refusing to employ an individual because of a belief that theymay not have permission to work in the UK could be subject to a discriminationclaim brought by the prospective employee in an employment tribunal. The Home Office has issued a code of practice for all employers on theavoidance of race discrimination in recruitment, which is intended to protectthe worker, while at the same time prevent illegal working. The code is notbinding on employers, but the tribunal should take it into account in anydiscrimination proceedings. Key elements of the code The code specifies documentation that an employer may request in order toconfirm that the individual is entitled to work in the UK. This includes: – A document issued by a previous employer, the Inland Revenue, the BenefitsAgency, the Contributions Agency or the Employment Service, stating theindividual’s national insurance number – A passport or national identity card identifying the individual as aBritish or EEA citizen, or having the right of abode in the UK – A birth certificate issued in the UK, the Irish Republic, the ChannelIslands or the Isle of Man – A letter from the Home Office indicating that the individual haspermission to work in the UK – A work permit or other approval for employment issued by Work Permits UK The code suggests that the employer should request that all applicantsproduce one of the documents listed. But they should be given a choice of thedocument they produce – to request that each applicant produce a P45 maydiscriminate against those applicants who have not worked previously. Failure to provide proof of employment status will not necessarily preventthe applicant obtaining authority to work. In situations where the applicant isnot able to provide proof of authorisation to work, they should be referred toa Citizen’s Advice Bureau or another such organisation as it may be the casethat they have not applied for authorisation. If the position would have been offered to the applicant had they been ableto show entitlement to work, it should be left open for a reasonable period oftime, if possible, to allow the candidate to apply for permission to work. What other obligations does an employer have towards a worker? An employer should not dismiss an employee due to expiry of their workpermit if that person is still required for the job. It is advisable that theemployer assists the employee to obtain an extension, otherwise an action forunfair dismissal may follow. Suspending a worker, until the determination oftheir appeal against a permit refusal, could be classed as constructivedismissal, particularly if suspension on pay does not include shift allowancesor regular overtime. Alison Gurden is a member of the employment department at BeachcroftWansbroughs Contact 020-7894 6038 Further information – Information on work permits may be found at www.workpermits.gov.uk– Information on the code of practice may be obtained from www.ind.homeoffice.gov.uk– Advice on avoiding race discrimination is available from the Commissionfor Racial Equality at www.cre.gov.uk Related posts:No related photos. Previous Article Next Articlelast_img

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