UK immigration laws play a significant part in the recruitment and selection process at every stage. Employers should evaluate overseas job candidates based on a variety of objective criteria, such as abilities, knowledge, and experience, besides personal characteristics.

Other legal obligations that employers must be aware of include criminal record legislation, the necessity to verify that the selected candidate has the legal right to work in the UK, and case law on reference checks for people selected for appointment. Furthermore, data privacy regulation (enacted in the UK by the Data Protection Act 2018) governs the collection, storage, and disclosure of information gathered throughout the recruitment process.

What are the main legal issues that affect recruitment?

Recruitment, like all efficient business activities, must be systematically investigated and well-planned. Most interactions an organization will engage in during the recruitment process have the potential for discrimination, and HR and line managers must be aware of the risks. 

In practice, the following legal issues have an impact on recruitment:

• The requirement for a nondiscriminatory process
• The importance of being aware of the constraints on children’s work
• The treatment of candidates who have a criminal record
• The requirement to verify the selected candidate’s right to work in the United Kingdom
• The requirement for persons working with vulnerable people or children to undergo DBS checks; and
• The importance of adhering to the Data Protection Act’s obligations for the acquisition, use, and storage of personal data

Employer’s responsibility to prevent unauthorized employment

Employing someone who needs immigration permission but does not have it is a criminal offense. Employers who violate the law face a maximum penalty of two years in prison and an infinite fine. In practice, this is aimed at employers who intentionally break the law in order to exploit vulnerable workers and undercut legitimate competitors. A civil penalty will usually be imposed on those who are just careless or negligent.

For every new staff, employers must inspect and replicate specific original documentation. The government’s employer guidance on avoiding unlawful working spells out when checks must be performed, what employers must do, and how to confirm the validity, as well as what to Xerox and save. Before starting work, background checks must be performed, however, employees with temporary immigration status must be re-checked.

Any checks should be conducted in a nondiscriminatory manner, in accordance with official instructions on avoiding unlawful discrimination while attempting to prevent illegal employment, which recommends that all job candidates be treated equally.

Employers should make sure that:

• Age, handicap, gender reassignment, colour, religion or belief, sex, sexual orientation, marriage or civil partnership, pregnancy or maternity, or trade union membership or non-membership are not used to discriminate against applicants.
• When a person specification specifies that someone of a specific sex, race, religion or belief, sexual orientation, or age group is necessary for a specific post, the regulations on occupational requirements are followed.
• Any provision, criterion, or practice (in the person specification) that, while appearing to be neutral in effect, could be implicitly discriminatory against certain categories of applicants under the legislation is taken into account.
• Disabled applicants are given reasonable accommodations.
• There is no pressure on any staff participating in recruiting and selection, or on any agency acting on behalf of the organisation, to prejudice.
• They are aware that employers can be held liable for acts of discrimination done by employees while on the job, including when managers and other employees are involved.
• They are aware that an employer’s defence to a discrimination claim is to demonstrate that it took all reasonable precautions to prevent the discrimination.
• Checks are made to confirm that the chosen candidate has the legal right to work in the UK.
• The details of a job offer are carefully examined to ensure that both parties understand their contractual obligations.
• The employment terms and conditions are in compliance with statutory requirements and minimum standards.
• The laws concerning children and adolescents are followed.
• Checks on health, qualifications, and/or criminal histories are conducted, as well as requests for references.
• Recruitment and selection data is treated in compliance with data protection legislation and Information Commissioner instructions.
• The recruitment and selection process is closely watched to guarantee that no one is treated unfairly (this is a duty for public authorities under the Equality Act 2010).

Employee’s Responsibilities

The overseas worker who is moving to the UK for work must make certain that:

• During the recruitment and selection process, they submit accurate personal information.
• They make it easier for the employer to conduct necessary background checks on their health, qualifications, right to work in the UK, and criminal history.
• They supply the names of suitable referees as needed.
• They stick to every arrangement they make when accepting a job.

Contact A Y & J Solicitors for assistance

Our expert immigration lawyers at A Y J Solicitors are here to help you. Contact us for assistance if you are interested in applying for a sponsor licence and would want to learn in-depth about the UK business pathways. With our experience, we can ensure you achieve your Global Mobility goals by guiding and advising you from start to finish.