Race discrimination – are your recruitment practices putting you at risk of a claim?

Purohit v Osborne Clarke Services Employment Appeal Tribunal decision of 9 February 2009.

Employers who, as a matter of company policy, refuse to consider job applications from individuals requiring work authorisation for the UK should be aware that such practices could expose them to claims of race discrimination.  The recent Employment Appeal Tribunal (EAT) judgement in the case of Purohit v Osborne Clarke Services[2009] All ER (D) 122 (Feb) is a clear warning against the use of potentially discriminatory recruitment practices.

In the Osborne Clarke case the claimant, a non-European Economic Area (EEA) national, had attempted to complete an online application form for a training contract with the defendant law firm.  The claimant was asked a number of preliminary filter questions, one of which queried whether or not he held a work permit entitling him to work in the UK.  He answered “no” and was consequently prevented from completing the online application.  He received the automated message “we are sorry but we are unable to accept applications from candidates who require a work permit to take up employment in the UK”.

The claimant pursued a claim with the Employment Tribunal alleging, amongst other things, direct race discrimination.

The law firm attempted to defend its position, relying on the UK Border Agency (UKBA) guidance as justification for its refusal to make work permit applications for trainee solicitors.  The guidance required employers to demonstrate why the role could not be filled by a resident worker (i.e. an EEA national or permanent resident) and sign a declaration, confirming that no suitable resident workers presented themselves for interview.  The defendant argued that due to the training nature of the role, it could not make such a declaration and any such application would be unlikely to succeed.

The EAT, however, held that provided the assessment process could be evidenced there was no objective justification for the defendant’s actions.  The tribunal’s original finding of indirect race discrimination on the grounds of nationality was upheld. 

Whilst this case refers to the now superseded work permit arrangements, the UKBA has since confirmed that it does not consider there to be a conflict between the Osborne Clarke judgement and the new resident labour market test (RLMT) under Tier 2 of the points based system which requires employers to “sponsor” migrants.  Employers are therefore advised by the UKBA to comply with both the judgement and the RLMT when undertaking recruitment.  In other words, employers may consider applications from any candidates but can only sponsor a migrant under Tier 2 if they have completed the RLMT and there are no suitably qualified settled workers available to fill the vacancy.  A settled worker is a person with no immigration restrictions on the length of their stay in the UK.

The finding of indirect race discrimination on the grounds of nationality in Osborne Clarke may extend beyond circumstances in which the employer is required to sponsor the migrant worker.  The judgement could also have implications in any situation in which a job application is dismissed because the candidate does not have a permanent right to work in the UK.  Employers should therefore exercise caution when recruiting.   Below are some practical tips for employers when recruiting:-

• Ensure online application forms do not automatically block applications from non-resident workers;
• Review existing recruitment policies to make sure they are not indirectly discriminatory and update if necessary;
• Recruit on merit;
• Address eligibility to work in the UK during the final stages of recruitment only and look at each case individually to see whether work authorisation could be obtained for a candidate;
• Keep a record of any decisions taken together with reasons why.  Also make a note of any investigations made into obtaining work authorisation;
• Have policies reviewed to ensure compliance;
• If a claim is made against the employer, seek legal advice;
• If policies are potentially discriminatory, it is essential that employers obtain clear evidence as to why a policy is a proportionate means of achieving a legitimate aim.