BLANKET BAN ON EMPLOYEES REQUIRING WORK PERMITS MAY AMOUNT TO DISCRIMINATION

Dealing with the immigration status of prospective employees can be something of a minefield for employers. On the one hand, an employer who employs a person who has no right to work in the UK without requiring documentary proof of such a right is liable to a civil penalty of up to £10,000 (see Employing People Subject To Immigration Control [link]). On the other, an employer who, expressly or by implication, imposes a condition as to the nationality or racial origins of applicants runs the risk of a discrimination claim under the Race Relations Act 1976.

That a race discrimination claim is a real possibility is shown by the recent decision in Osborne Clarke Services v. Purohit. P, an Indian national applied on-line for a training contract with the OCS, part of a large firm of Solicitors. The application form asked whether he had a UK work permit. When P answered “no” the comment 'We are sorry but we are unable to accept applications from candidates who require a work permit to take up employment in the UK” was displayed. P went on to make an application which produced the response “Unfortunately we are unable to obtain work permits for trainee solicitor roles and we are therefore unable to proceed with your application”.

The condition that applicants must not require a work permit to work in the UK was potentially discriminatory. This was because the proportion of persons from outside the European Economic Area (EEA) who could satisfy the condition was considerably smaller than the proportion of EEA nationals who could satisfy it. The key issue was whether or not the condition was justified. At the time, guidance from the UK Border Agency (UKBA) relating to work permit applications required employers to show why a post could not be filled with resident EEA workers, and also give credible reasons why they had not employed a suitably qualified resident worker or one who, with extra training, could do the job. OCS argued that the condition was justified because the job was training-related, and EEA candidates who were apparently less qualified than non-EEA candidates could always be trained up. Further, the number of potential applicants for training posts would involve the employer in considerable administrative costs in making work permit applications which were bound to be unsuccessful.

Both the Employment Tribunal and the Employment Appeal Tribunal (EAT) rejected these arguments. The EAT ruled that the employer had provided insufficient evidence to prove objective justification. In particular, there was no evidence of discussions with the UKBA about the chances of succeeding in work permit applications for potential trainees from non-EEA countries. Further, OCS should have had regard to the CRE Code of Practice on Racial Equality in Employment. This makes it clear that, as far as possible, selection should be based purely on merit and work permit issues should only come into consideration at the last stages of selection.

Note: As from 27 November 2008, the work permit regime was replaced by the Tier 2 skilled worker category. However, a "resident labour market test" applies to Tier 2 applications as it did to work permits, so the same considerations as arose in this case will apply to applications subject to the new regime.

If you would like to know more about the rules on illegal working and how you can best minimise the risk of race discrimination claims, please contact Nick Crook or Gareth Pobjoy.

Filed: 23/02/2009 12:54:03