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Employers liable for race discrimination

Employers liable for race discrimination for failing to consider non-EU job applicants

 EAT decision adds more burden on already struggling employers
 Follows the Home Offices announcement of reduction of visas awarded to foreign workers

Employers that do not process job applications from non-UK, EU and EEA applicants could be held liable for indirect race discrimination for failing to consider employing a person that requires a work permit, warns Wedlake Bell, the City law firm.

This follows a recent ruling from the Employment Appeal Tribunal (EAT)*.

Wedlake Bell explains that many companies, especially SMEs, do not consider applications from individuals that require a visa to be employed in the UK. This is because the cost associated with obtaining such visas can be prohibitive. Smaller companies have more limited resources, primarily in terms of time to process such applicants. Without a dedicated HR professional to guide the process, many employers simply cannot afford the time and cost of trying to employ a non-UK, EU or EEA applicant.

According to Wedlake Bell, EATs decision is likely to increase employers costs of recruiting, and introduce further administrative costs by requiring that an employer be able to prove that they have sufficiently considered a foreign applicant even when they already know they cannot prove that there is no UK, EU or EEA candidate that can do the job in the first place.

Says Richard Isham, a partner in the Employment Team at Wedlake Bell: It is unfortunate that this decision will increase costs for employers, especially as we are in a recession.

Even if a non-UK, EU or EEA candidate is chosen, the chances are very high that the Home Office will reject the Visa application, so it is questionable whether this decision works for the benefit of British business.

Wedlake Bell explains that in order to employ such individuals an employer needs to apply for a Tier 2 Visa (for a skilled worker who can fill a skills gap I the UK labour force) and be in a position to prove that they cannot find a person from within the UK, EU and EEA to carry out the same work. The employer has to act as a Sponsor to the non-UK, EU or EEA worker, the cost of which can be around 1,000.

Says Richard Isham: It was always the case that a very high number of such applications fail, due to the Home Offices own stringent criteria for granting a Tier 2 Visa, namely that the individual is able to do a job that no UK, EU or EEA applicant can do.

The failure rate is likely to increase further following the Home Secretarys own announcement last weekend that the Home Office will limit the number of visas awarded to foreign workers, in an attempt to address the publics concerns over job availability during the recession.

Richard Isham advises that:

 Companies should avoid online application systems that automatically block a non-UK, EU or EEA candidate from proceeding further with an application as this could be evidence of a discriminatory policy. Such applicants should be able to proceed and be considered for interview.

 Companies that do not have online application systems should ensure that they do not have a clear and explicit policy not to consider applications from non-UK, EU and EEA applicants. Such applicants should be invited for interviews if their CVs match the requirements.

 Companies also need to be able to produce evidence that proves that they were able to fill all positions from the UK , EU and/or EEA pool of candidates.

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