20/09/2022

It is fair to say, that if you are an employer, you may well be facing significant difficulties in recruiting and retaining employees in your workplaces at present. External factors, such as Brexit and a post pandemic ‘boom’ , have led to a labour shortfall, with Organisations turning to online platforms, such as LinkedIn, to widen the scope of potential applicants/candidates.

This, of course, is leading to an influx of applicants from outside of the UK who do not have the requisite right to work status. Many employers are currently faced with the quandary; do we have to interview every applicant who meets our criteria, or can we deselect those who do not have the right to work in the UK?

This is a question we are being asked to advise on more and more.

Before deciding on their approach, employers need to be aware that deselecting candidates based on location/right to work status could potentially leave them vulnerable to claims of discrimination on grounds of race/nationality.

The law

It is indirectly discriminatory to apply a provision, criterion, or practice (the PCP) which, although applied equally to all in a situation, puts certain people (here those of a different nationality) at a disadvantage and which cannot be shown to be a proportionate means of achieving a legitimate aim. This covers not only individuals who are put at an actual disadvantage by a provision, criterion, or practice but also individuals who are deterred because of it. In this scenario those who are deterred from applying for the advertised position.

There is a defence to claims of indirect discrimination if the Organisation can show there is a legitimate business reason for having the provision, criterion, or practice and that it is applied in a way that is proportionate i.e., the PCP is no more discriminatory than necessary. This is referred to the ‘objective justification’ defence.

Case law has held that cost alone is unlikely to justify discrimination –it cannot be a valid reason to simply say it was cheaper to discriminate. Furthermore, the more the PCP has a discriminatory effect, the more difficult it is for an employer to objectively justify it.

Objective Justification and Right to Work Checks

The issue of indirect race discrimination and right to work checks was considered in 2009 by the GB Employment Appeal Tribunal (EAT) in the case of Osborne Clarke Services v Mr A Purohit. The EAT decisions are not binding in Northern Ireland but are highly persuasive. Osborne Clarke, a law firm, had a policy of not considering any applications for solicitor training contracts from individuals who required permission to work in the UK. Their rationale was that they had enough applicants from the resident labour market to always fill those posts.

Mr Purohit, an Indian national, had sought to apply for a training contract with the firm. In light of Osbourne Clarkes’ policy his application was not considered as he did not have the right to work in the UK.  At first instance, the Employment Tribunal found that the firm’s policy was indirectly discriminatory on the grounds of nationality, as the proportion of non-EEA nationals who could comply with it was considerably smaller than the proportion of persons not in that group who could comply (that is, EEA nationals) and the policy was not justifiable. Therefore, Mr Purohit succeeded in his claim of indirect race discrimination. The EAT upheld the original Tribunal’s decision, rejecting the employer’s argument that the policy saved time and costs as that was ‘an unattractive way of justifying indirect discrimination’.

The upshot of this is that having a rule that the Organisation will deselect those without the right to work in the UK your recruitment process would amount to indirect discrimination on grounds of nationality unless that rule could be justified by the business.

To justify the rule, the business would have to consider its business case. The costs alone of sponsoring the role or the business having to become a sponsor is unlikely to be sufficient.

The Code of practice for employers: avoiding unlawful discrimination while preventing illegal working (which extends to Northern Ireland) states:

“Job applicants and employees with a time-limited right to work

Job applicants should not be treated less favourably if they produce acceptable documents showing a time-limited right to work in the UK. Once a person who has time-limited permission to stay in the UK has established their initial and ongoing entitlement to work, they should not be treated less favourably during their employment, including as to the terms of their employment, opportunities for training, promotion or transfer, benefits, facilities or services, or by dismissing the worker or subjecting them to some other detriment, other than further right to work checks as prescribed in the guidance …”

The Equality Commission Northern Ireland (ECNI) does not cover this point directly (unlike its GB counterpart). In ECNI states:

“It is unlawful for an employer to discriminate:

• in recruitment and selection, including arrangements for deciding who should be offered employment; in the terms on which employment is offered; or by refusing or deliberately omitting to offer a person employment;”

In GB the recommendation is:

‘Eligibility to work in the UK should be verified in the final stages of the selection process rather than at the application stage, to make sure the appointment is based on merit alone and is not influenced by other factors.’ (See GB Code of Practice issued under the Equality Act 2010)

Practical Guidance for Employers

Organisations should not prevent individuals from applying for roles if they do not have the right to work in the UK at the date of application. Employers should (as far as possible) base selection purely on merit and right to work issues should only come into consideration at the last stages of selection. This is undoubtedly the safest approach for businesses and the best way to protect your Organisation from claims of unlawful discrimination.

If a preferred applicant requires sponsorship and the employer does not have a sponsorship licence and chooses not to apply for one, then the facts will have to be considered carefully to ascertain whether the decision is one that is legally justified. We recommend that you seek specific legal advice if the business is in this situation.

Any you require specific advice or support you should contact the Legal Team.