The Home Office has published a Draft code of practice for employers: avoiding unlawful discrimination while preventing illegal working. The draft code has been produced following consultation, which included seeking the views of the Equality and Human Rights Commission and other appropriate employer bodies. Section 3 deals with avoiding racial discrimination. Of interest is the guidance that employers may ask applicants to provide the specified document(s) to obtain a statutory defence to defeat a civil penalty of employing an illegal worker at any stage before they start work, e.g. from all those called to a first interview, or just from those called to a second interview, or only from persons short listed to fill the vacancy. This advice appears to run contrary to the previous guidance issued by the Data Protection Information Commissioner that undertaking checks on those people who are being ‘offered’ employment should be the only method used so as to avoid the collection of unnecessary personal data so as not to breach the third data protection principle, i.e. personal data must be adequate, relevant and not excessive in relation to the purposes for which it is processed. 

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