Do we need a right to work reality check?

Lengthy right to work checking processes are causing businesses to lose out on key talent. Some may then be tempted to flout the rules

Windrush. It’s been the political scandal of the year – eclipsing even Brexit and responsible for the scalp of yet another British home secretary (the eighth in just 17 years). But whatever its cause – be it an innocent clear out of paper records, or a reflection of deep-seated intolerance to immigrants – one fact remains. In the aftermath of criticism of the blanket (some would say robotic) approach taken by government to obtain proof of residence, nothing has changed in terms of what it expects employers to do. Which is to remain (since the Immigration, Asylum and Nationality Act 2006) as de facto border control when hiring workers, or face a £10,000 fine.

But in this more emotionally-charged post-Windrush atmosphere, some argue old sores between employers and government are re-opening. Because it causes HR departments a problem: how can they remain compliant without positioning themselves as intolerant and unwelcoming just as they are in desperate need of scarce talent?

“For many employers this is an unsquarable circle,” argues Gary McIndoe, director of specialist immigration firm Latitude Law, who has represented members of the Windrush generation. “Employers can’t just ignore checks [which require HR teams to prove they’ve received certain documents from international applicants] and because of this they run the risk of being seen as unsympathetic, or not understanding, by overseas talent.”

The problem, argues Joanna Hunt, managing associate, employment, reward and immigration at Lewis Silkin, is that employers can appear draconian because the system leaves little room for discretion. “What’s common is that foreign applicants, such as those who have already applied to have their visas extended, do have documentation. But because they’ve first sent them to the Home Office, and only originals are allowed, they can’t present them to employers,” she says.

“Faced with being fined, and the level of experience needed to declare a thorough check, employers have no option but to default to not taking them on – even when these people are here legally. Even though the government has an Employer Checking Service to supposedly deal with this issue it’s woefully inadequate and often wrong, which means firms are forced to let potentially good people go. This is how potential discrimination claims start.”

Employment associate at JMW Michael Legge explains that employers can employ someone whose application is pending at the Home Office, but this is little-known among employers.

At the other end of the spectrum, and perhaps more worryingly, demand for talent is so fierce that others are either willing to take a risk or unaware of their responsibilities altogether, reports Legge. He says this might explain why recent research by Sterling Talent Solutions found that 40% of employers admitted to not screening international hires.

“For the last four months Tier 2 applications have been oversubscribed,” he says. “Employers need to hire, and faced with falling numbers of EU workers coming to Britain they are maybe turning a blind eye to their checking responsibilities. It’s not a good idea though.”

But apart from ignoring the rules, can employers really do anything more to welcome international talent? “The conundrum faced by organisations needing to attract talent in what some might consider a hostile environment for those arriving from outside of the UK is an interesting one,” says Andrea Piacentini, head of reward for the UK and Europe at Standard Life and co-founder of The RES Forum.

“For me the only thing organisations can really control is how they shape their corporate environment – by having strong diversity and inclusion policies that they can use to shape their brand and that transcend local, perceived societal dynamics.”

Kathryn Kendall, chief people officer at Benefex, echoes this. She says: “We believe the key is consistency and transparency. We require all candidates, regardless of their nationality, to prove their right to work, and we talk to them all to reinforce this and ensure everyone feels they’re being treated the same.

“For us it’s about treating people as adults and being open about the processes you have and the reasons they’re necessary. It’s only through non-compliance with this that complications arise.”

Crucially Kendall says this still leaves room to show compassion. “Where we did have an issue with one applicant, whose papers were elsewhere in the immigration system, we decided to keep the job offer open until their documents were returned. It was either that or lose a good person,” she reports.

What could ultimately drive behaviour, argue others, is employers’ sense of urgency, especially if it tempts those who feel they cannot wait into flouting the rules. “We’re a business that employs 40 different nationalities, but that has also seen our Tier 2 visa numbers get cut by 75% in the past year,” says Rupert Morrison, CEO of Concentra Analytics.

“We obviously stick to the rules, but it’s meant that hiring one person from Hong Kong has taken us nine months to get approval confirmed. All the while that person was being courted by others who also wanted him. We had to work very hard to ensure we got him, and it cost us a lot of time and money and [required] skilled HR people.”

He adds: “Politicians need to understand how their well-meant policies constrain growth.”

Potentially better news is that Windrush may yield some changes on this front. “The government has asked for a call for evidence in response to this – where I’m hopeful employers will put their cases across,” says McIndoe. “With Brexit not far off we’re hearing about proposals for an electronic right to work solution, which would at least take establishing the right to work off employers’ shoulders,” adds Hunt.

In the meantime though, she says employers simply have to grin and bear it and do the best they can not to appear discriminatory. “The current system does create ill feeling. But if anything comes out of Windrush it will be to re-emphasise just how important human-to-human interactions are.

“Businesses can’t afford to lose good people, nor are they set up to be the border police. By at least explaining the rules as a necessary evil they can hopefully get buy-in from all concerned.”