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  • Nicky Webster-Hart

Are you discriminating against candidates unknowingly?

Employers, recruiters, HR teams, are you up-to-date with visa recruitment legislation? Are you discriminating against candidates unknowingly? What if you were, without realising it, discriminating against workers from overseas?

The first step (and always if in doubt) should be to consult the home office guidelines found on how to avoid unlawful discrimination. Everyone should read this but here are some of the key points:

  • Employers have a legal duty to prevent illegal working by ensuring that those they employ have the right to work in the UK.

  • And that whilst complying with the legal working requirements, they should not undertake in an unlawful discrimination, whether directly or indirectly. Examples of direct discrimination where there is no statutory exception are:

  • rejecting all job applicants because they do not have British nationality or another specified nationality

  • refusing to consider any non-British /Irish job applicants

  • where it is assumed without foundation that overseas qualifications and experience are inferior.

In the context of right to work checks, examples of direct discrimination might include:

  • not interviewing someone from a certain nationality or ethnic group because it is assumed that they will not have the right to work in the UK

  • carrying out right to work checks for a Black employee but not for his White colleague.

An example of indirect discrimination is:

  • to require that an employee has been resident in the UK for over 5 years prior to starting employment is likely to be indirectly discriminatory since some migrants who have the right to work will not have been resident in the UK for that period of time.

The code of practice goes on to say that “Employers should:

  • be consistent in how they conduct right to work checks on all prospective employees, including British citizens.

  • ensure job selections are made on the basis of suitability for the post.

  • Ensure that no prospective job applicants are discouraged or excluded, either directly or indirectly, because of known or perceived protected characteristics.”

There is a legal requirement that there is a fair recruitment process for those with an entitlement to work in the UK. In particular, 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, including opportunities for training, promotion etc or by dismissing the worker or subjecting them to some other detriment, other than further right to work checks as prescribed in the guidance and ‘Code of practice on preventing illegal working: civil penalty scheme for employers’, available on GOV.UK.

This is big, this means that job applicants cannot be rejected if they have a time restricted visa, including graduate visas.

There is case law here too, Osborne Clark Vs Purohit (2009) “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. Depending on the employer’s recruitment process and the type of job being filled, candidates might be asked for the relevant documents when they are invited to an interview, or when an offer of employment is made. Employers can, in some circumstances, apply for work permits and should not exclude potentially suitable candidates from the selection process.”

In a candidate-led market, we should be embracing the opportunity to access more talent. Employers and recruiters need to update themselves on the legislation and be mindful not to discriminate.

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