UK IMMIGRATION NEWS

Refusal to employ non-EEA nationals was race discrimination

Tuesday, 14 April 2009

A UK employer who does not accept job applications from non-EEA nationals who required a work permit is at risk of claims for indirect race discrimination, according to a recent legal case.

The UK employer, a firm of solicitors, recruited trainee solicitors through an online application process which stated that they did not accept applications from those who required a work permit. An applicant, an Indian national, was rejected on the basis that the firm was unable to obtain work permits for trainee solicitors.

The firm responded to the claim by referring to the UK Border Agency's Guidance for Employers stating that the employer must show why the vacancy could not be filled with a 'resident worker' (an EEA national), who is either suitably qualified or one who could do the job with extra training. The firm offered 26 candidates trainee solicitor jobs out of 290 applications they received. On this basis, they assumed that any work permit application would be turned down.

The Employment Law Tribunal rejected the firm's arguments and upheld the applicant's claim for indirect race discrimination. The Tribunal referred to the Code of Practice on Racial Equality and Employment, which states that job appointments should be made on the basis of merit and any issues around work permits should be left until the last stages of the recruitment process. The Tribunal also rejected the firm's arguments that recruiting non-EEA nationals who required a work permit causes additional cost and administrative inconvenience.

The Tier 2 Skilled Worker visa of the points-based system has now replaced the old work permit system. However, the 'resident labour market' test still applies, with tightened requirements. The vacancy must be advertised at the Jobcentreplus as well as at least one recognised medium, before recruiting a non-EEA national.

If you are interested in UK Visas, contact Migration Expert for information and advice on which visa is best suited to you. You can also try our visa eligibility assessment to see if you are eligible to apply for a visa to the UK.