Lady standing forward Home | Failure to employ non-EEA nationals can be race discrimination

Failure to employ non-EEA nationals can be race discrimination

27 February 2009

The Employment Appeal Tribunal (EAT) decided a law firm had indirectly discriminated against an applicant for a solicitor training contract on the grounds of his nationality.

The law firm had a policy of not considering any applications for training contracts from individuals who required permission from the UK Border Agency (UKBA) to work in the UK.

The policy affected non-EEA nationals, who are not permitted to work without a work permit. The claimant was an Indian national, whose application had been refused by the law firm.

The EAT upheld the tribunal's original decision that the policy was indirectly discriminatory, because the proportion of non-EEA nationals who could comply with it was smaller than persons not in that group, who could.

The employer argued that it would be unable to apply for a work permit for any non-EEA nationals who applied. It felt that it would be unable to sign the required declaration that it could not fill the position with less successful EEA candidates who could, with extra training, do the job.

The EAT agreed with the tribunal that the employer could not objectively justify the policy: there was no evidence of any dialogue between the employer and the UKBA to support the assumption that there was no point in applying for a work permit, because the application would inevitably be rejected.

The employer had therefore not even begun to 'establish the level of evidence that is required to prove justification on an objective basis'.

When deciding the case the tribunal had relied upon the statutory Code of Practice on Racial Equality and Employment, which stated, ‘...employers can apply for work permits, and should not exclude potentially suitable candidates from the selection process'.

The code goes on to say that selection should be based on merit, and consideration of work permits should happen at the later stage of selection. The EAT approved of this approach.

Although this case occurred before recent changes to immigration law, its findings apply equally to the new points-based system that replaced work permits.

The current economic situation appears to have encouraged a trend towards 'British jobs for British workers'.

However, this case demonstrates that employers are walking a tightrope between these pressures, the requirements of immigration law (where penalties for non-compliance can be substantial), and race discrimination.

Employers must now be wary of implementing any blanket policy on recruitment without having good evidence to justify it. The UKBA has issued guidance on avoiding race discrimination.

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