Employers in many UK sectors rely on overseas workers to meet demand for services and products but in their search for the ideal candidates fall foul of the law. Ironically, it is often those who feel the best candidates are to be found outside of the European area that are at risk of discriminating against UK applicants. And that could be costly.
Although there are additional administrative responsibilities involved in employing overseas workers, the law demands that employers do not treat anyone less favourably simply because they are not UK citizens. And where most employers are aware not to discriminate against employees, many forget those principles when it comes to writing job adverts.
If an advert makes it clear that you only want to hear from candidates who match certain criteria, and this effectively excludes others because of their gender, race, age or disability, this could be considered direct discrimination.
In advertising a new role it is easy to accidentally create a blanket policy that excludes entire categories of workers – EEA nationals or otherwise. This can be by asking for candidates from particular nationalities or ethnic groups. Or by setting a criteria that makes it impossible for a certain group to apply.
If an employer is considering using Tier 2 of the points-based system to sponsor an employee, the job advert must comply with the Resident Labour Market Test. This means setting out the required qualifications, experience and skills needed for the job. The Home Office is likely to refuse an application for a visa if the advertising does not meet its strict requirements. Although ‘language’ is not a protected characteristic under the Equality Act 2010, differentiating on the basis of language could have the simultaneous effect of excluding particular nationalities or ethnic groups that have protected characteristics under the definition of race. For example: a requirement that an applicant speaks Polish is fine. A requirement that the applicant is Polish could potentially be discriminatory against other nationalities.
Does that mean you can’t make it a requirement for candidates to speak English or another language? No. Ultimately it will depend on the role in question and the skills required. If it is a customer-facing role that depends on particular language skills it may be justifiable to require applicants to be able to speak that language to a sufficient standard. But it will not be acceptable to restrict the criteria to a particular nationality or ethnic group.
During the interview process employers must be careful not to ask questions about subjects that are defined as 'protected characteristics'. These include questions about race, nationality and ethnic origin. For example, an employer should not ask a prospective employee about which country they are from as this could be considered discriminatory. It is important to remember that document checks must be carried out for all employees regardless of their country of origin.
It is crucial that all candidates are asked to provide the relevant documentation to prove that they are allowed to work in the UK. The employer should check that the documents supplied confirm that applicant has the right to work, that there are no restrictions on the number of hours that can be worked or on the type of work. Full copies must be kept for future reference.
It can be difficult for employers to ensure that their recruitment processes are robust. By bearing in mind a few key principles they can secure the most suitable candidate whether that person is British, European or an overseas national.
Emma Brooksbank is an immigration solicitor at Simpson Millar
