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Are your recruitment practices putting you at risk of a race discrimination claim?

Home / Knowledge base / Are your recruitment practices putting you at risk of a race discrimination claim?

Posted by Suki Harrar on 28 August 2012

Suki Harrar Partner

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 employment appeal tribunal (EAT) judgment in the case of Purohit v Osborne Clarke Services (2009) is a clear warning against the use of potentially discriminatory recruitment practices.

Purohit v Osborne Clarke Services

In the Osborne Clark 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, indirect race discrimination.

The law firm attempted to defend its position, relying on the UK Border Agency 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 (ie an EEA national or permanent resident) and sign a declaration, confirming that no suitable resident workers presented themselves for interview. The firm held 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.  

What about the Resident Labour Market Test?

Whilst this case refers to the now superseded work permit arrangements, the UK Border Agency has since confirmed that there is no conflict between the Osborne Clark judgment and the new Resident Labour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 UK Border Agency to comply with both the judgment 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 there are no suitably qualified settled workers available to fill the vacancy. A settled worker is a person with no immigration restrictions on their length of their stay in the UK.

Employers need to exercise caution when recruiting

The finding of indirect race discrimination on the grounds of nationality in the Osborne Clark case may extend beyond circumstances in which the employer is required to sponsor the migrant worker. The judgment 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. 

About the author

Suki advises on all employment law issues, including unfair dismissal, redundancy, TUPE, appointments of senior executives and contract documentation.

Suki Harrar

Suki advises on all employment law issues, including unfair dismissal, redundancy, TUPE, appointments of senior executives and contract documentation.

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