Work visas and the Race Relations Act
Case study
Geraldine Jones, the recruitment manager for the Bespoke hotel, advertises for a systems administrator and a general maintenance assistant.
She shortlists three candidates for the maintenance job and Lyn-Mai, a 25-year-old of Chinese descent, is identified as the strongest applicant. However, while her spoken English is fluent, she does not possess a high standard of written English. Jones remembers that her boss, operations manager Terry Judd, has said that the hotel should not employ anyone who does not "speak and write English properly".
For the systems administrator job, Jones receives a call from Mohammed Al-Jalal, who has just returned to Egypt after studying computing in the UK. He has wide experience of computer packages and would be ideal.
Judd, however, tells Jones that under no circumstances should she employ anyone who looks or sounds foreign, claiming that these applicants are probably not allowed to work in the UK anyway.
This case study is a work of fiction and the names, characters and incidents portrayed are fictitious. Any resemblance to actual persons, living or dead, events or localities is coincidental.
What the law says
The Race Relations Act 1976 makes it unlawful to discriminate in employment or recruitment on the grounds of race, colour, nationality, or ethnic or national origin. There is no upper limit to the compensation an employer can be ordered to pay in race discrimination cases.
Section 8 of the Asylum and Immigration Act 1996 makes it a criminal offence to employ a person who is subject to immigration control unless that person has current and valid permission to live and work in Britain. Employers can be fined as much as £5,000 for each illegal employee.
The Home Office has recently published a code of practice to help employers avoid racial discrimination in recruitment and prevent illegal working.
What the expert advises
Stephanie Slanickova is an employment law specialist in the hotel and leisure group at Tarlo Lyons
This case study highlights the difficulties faced by employers in trying to balance their obligations under the Race Relations Act and the Asylum and Immigration Act.
Under the Race Relations Act, employers have a duty to avoid race discrimination in employment and recruitment. Refusing to employ anyone who "looks or sounds foreign" constitutes unlawful direct race discrimination. This occurs where a person is treated less favourably on racial grounds. Such a policy could soon lead to a claim against the hotel.
Judd's view that the hotel should not employ anyone who does not "speak and write English properly" could constitute indirect race discrimination. This occurs where a condition or requirement is imposed which applies equally to everyone but is more difficult for people from particular racial groups to satisfy, and cannot be justified.
In this situation, it would be difficult to justify requiring the general maintenance manager to possess a high standard of written English, as this is unlikely to be a requirement for the job.
To avoid facing prosecution under the Asylum and Immigration Act, Jones needs to see and either keep or make a copy of only one of a number of specified documents. These are listed in full in Appendix 1 of the Code. The following are examples:
- A document issued by a previous employer stating the National Insurance number of the person named.
- A letter issued by the Home Office confirming that the person named is exempt from immigration control.
- A passport endorsed to show that the person has current leave to enter or remain in the UK and is not precluded from taking the employment in question.
Jones should ensure that she sees one of these documents before the applicant starts work, and that the document relates to the applicant in question and is an original.
To avoid discriminating against applicants, Jones should treat all applicants in the same way at each stage of the recruitment process.
It would be a good idea to inform applicants that the successful person will be askedto produce one of the specified documents.
Other than requesting such a document or checking whether the applicant requires a work permit, Jones should avoid asking about immigration status. This could mislead her into making decisions that discriminate.
As a matter of good employment practice, the hotel should adopt clear written procedures for recruitment, and monitor the outcome of recruitment and selection in terms of ethnicity of job applicants, to enable the hotel to keep a check on whether it is treating applicants fairly.
Should neither applicant be entitled to work in the UK, the hotel could try to obtain a work permit on their behalf, under a work permit scheme administered by Work Permits (UK), formerly the Department for Education and Employment.
Contacts
Stephanie Slanickova
Tarlo Lyons 020 7405 2000
Immigration and Nationality Directoratewww.ind.homeoffice.gov.uk
