Be aware of racial bias when employing staff

A
code of practice on racial discrimination seeks to clarify rules on the
immigration status of potential employees

Employers need to tread carefully when considering the immigration status of
job applicants and new recruits

Under the Asylum and Immigration Act 1996, it is a criminal offence to
employ a person who does not have permission to work in the UK. Employers have
a defence to such a criminal charge, however, if they make appropriate checks
before taking on new staff. This involves seeing and copying one or more of a
range of specified documents – a valid work permit or a documented National
Insurance number, for example.

Employers also need to take on board the risk of discriminating against job
applicants and new recruits on racial grounds when making the necessary checks,
particularly since the Race Relations Act 1976 specifically covers
discrimination on grounds of a person’s nationality or national origins. The
potential for race discrimination claims to arise in the context of immigration
is illustrated by the Employment Appeal Tribunal’s recent decision in Ice
Hockey Super League v Henry, June 2001, IDS Brief 686, .

Shane Henry, a Canadian professional ice hockey player, was engaged to play
for the Sheffield Steelers in the UK’s Super League. He had the right to work
in the UK without the need for a work permit on the basis of his national
origins in the European Union.

His contract provided for a four-week probation period, during which his
employment could be terminated. After arriving in the UK, concerns were
expressed about his fitness and he was given notice of termination.

Henry lodged a claim of race discrimination. In essence, he argued players
like himself, with national origins in the EU, had been treated less favourably
than players with national origins outside the EU whose contracts did not
include a probationary clause.

An employment tribunal upheld the complaint. It found that the inclusion of
a probationary clause in a player’s contract depended on whether or not he
required a work permit. Since the need for a work permit was based on national
origins, it followed that the inclusion of a probationary period in Henry’s
contract amounted to race discrimination.

The EAT, however, allowed the Super League’s appeal, relying on the Court of
Appeal’s decision in Dhatt v McDonald’s Hamburgers, March1991, IRLR 130. In
that case, it was held that McDonald’s did not discriminate on racial grounds
against an Indian national by asking him to show evidence of his right to work
in the UK, even though EU nationals were not required to produce such evidence.
The correct comparison under the RRA, the Court of Appeal said, was between
Indian nationals on the one hand and other non-British, non-EU persons of
whatever nationality on the other. Those two groups were treated alike by
McDonald’s in terms of having to prove their right to work, so there was no
discrimination.

Applying analogous reasoning, the EAT ruled Henry had to compare himself
with other ice hockey players of whatever racial origin who did not require a
work permit to work in the UK. Since all those players had probationary clauses
in their contracts, Henry had not suffered any less favourable treatment under
the RRA.

Although the employer ultimately escaped liability in Henry’s case, it
provides a salutary reminder of the need to be aware of race discrimination
issues when dealing with matters concerning the immigration status of new staff
and potential recruits.

Last month the Home Secretary issued a statutory Code of Practice on how to
avoid race discrimination while ensuring that a new member of staff has the
right to work in the UK in line with the Asylum and Immigration Act. The code
recommends that all job applicants should, as far as possible, be treated in
the same way throughout the recruitment process. Employers who behave otherwise
– for example, by carrying out checks only on applicants who appear or sound
"foreign" – are skating on thin ice.

Richard Lister is a lawyer in the employment department at Lewis Silkin

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