Automatic rejection of non-EEA job applicants amounted to indirect race discrimination
A recent EAT decision has highlighted the risk to claims of race discrimination faced by employers who structure their recruitment processes to favour EEA applicants in order to comply with immigration requirements.
The Facts
As part of its application process for training contracts, Osborne Clarke, a firm of solicitors , asked applicants to respond to three preliminary filter questions concerning academic qualifications and immigration status. If the applicant indicated, as in this case, that he did not have a work permit to work in the UK the applicant was informed that his application could not be accepted. The EAT rejected arguments by Osborne Clarke that its policy could be justified on the grounds of proportionality or on the basis of a belief that an application for a work permit for a trainee would be unsuccessful on the basis of UK Border Agency (“UKBA”) guidelines. In particular, the EAT highlighted the lack of any clear evidence submitted by Osborne Clarke to support the second of these arguments as it had never submitted an application for a work permit for a potential trainee.
The EAT stated that initial applicant selection criteria should be based purely on merit, and work permit issues should only be considered at a later stage of the selection process. In particular, employers should not try to second-guess the UKBA or to assume that the UKBA will not grant a work permit.
Lessons for Employers
This case is clearly a warning to employers to carefully select the criteria in any screening process to filter applications. Rejecting applicants on the basis that they do not have permission to work in the UK is not acceptable in itself even though the employer will ultimately have to justify selecting a non-EEA candidate in preference to someone from the resident labour market.
This case shows the growing interplay between UK employment and immigration law and, as workforces become increasingly diverse, it is essential that employers are aware of the potential pitfalls. Our specialist employment and immigration teams work closely together to provide employers with cohesive strategic and advisory services.
