Far from black and white

The issue of race has never been higher on the political
agenda. For employers, too, it presents more challenges than ever before, as Rachel
Dineley reports

Issues of racism and race discrimination have been much in the news lately.
The debate as to the causes of racial tension and how it may be combated has
been raging since the murder of the black teenager Stephen Lawrence, but
despite much national introspection, the answers seem as distant as ever.

As a result of the inquiry into Lawrence’s death, the Race Relations
(Amendment) Act 2000 was introduced. Its purpose was to outlaw race
discrimination in the performance of functions by public authorities not covered
by the Race Relations Act 1976. A month later, the Home Office produced
guidance on recruitment in the context of the Asylum and Immigration Act 1996.

While the new act is the latest UK statute to grapple with issues of race
discrimination, it shares the stage with two new European directives, the Race
Directive and the Framework Directive, which will require the UK government to
put further legislation in place by 2003. This legislation is likely to entail
further amendments to the RRA. In the meantime, employers may be well advised
to review their policies and procedures, beginning with those relating to
recruitment, to ensure that they comply with legal requirements and good
practice.

Race Relations (Amendment) Act

The new act came into force on 2 April 2001. It extends the ambit of the RRA
in a number of key respects, in particular in the discharge of public functions
by public authorities. The RRA was designed to tackle discrimination on racial
grounds in the field of employment, the provision of goods, facilities and
services, training, education, housing and public appointments but
"services" were given a narrow interpretation by the courts.

The new Act seeks to remedy the shortcomings of the RRA in this respect and,
in so doing, creates new challenges for employers in the public sector.

The new act imposes both general and specific duties on public authorities
which, for this purpose, are defined as "any body certain of whose
functions are of a public nature" (the approach taken in the Human Rights
Act 1998).

The definition of "public authority" is sufficiently broad to
embrace those bodies which are privately owned but have responsibility for
discharging functions of a public nature, such as the running of a prison.

The new act, which introduces a new section 71 into the RRA, imposes a
general duty on authorities when carrying out their public functions to
"have due regard to the need (a) to eliminate unlawful race discrimination
and (b) to promote equality of opportunity and good relations between persons
of different racial groups". Public authorities are, in effect, required
to undertake a balancing exercise when determining how to discharge their
public functions and to give appropriate weight to promoting race equality. In
addition, the Home Secretary may, by order, impose "such duties as he
considers appropriate for the purposes of ensuring the better performance"
of the general duty to promote race equality.

The Commission for Racial Equality has been given extensive powers under the
new act including powers to issue codes of practice after appropriate
consultation. Once in force, a code of practice will be admissible in court in
respect of any claim brought under the act or an order imposed under it to
promote race equality. This is comparable to the CRE’s code of practice giving
guidance on employment practices, which may be taken into account by any
employment tribunal considering a complaint of race discrimination.

The aim of the new Act is to ensure that proper account is taken by public
authorities in both policy development and service delivery. Their recruitment
practices will, no doubt, be integral to fulfilling their general and specific
duties imposed by the new act.

Recruitment without prejudice

The CRE’s code of practice for the Elimination of Racial Discrimination and
the Promotion of Equality of Opportunity in Employment was published in 1983.
Since then, workplace practices have developed and changed, not least as a
result of the development of technology and the demands placed on employers by
an ever increasing body of law regulating employment practices.

In addition to the CRE’s code of practice, employers should now take account
of a Home Office code of practice, in force since 2 May 2001, relating to the
Asylum and Immigration Act.

The CRE’s code of practice reminds employers that, when advertising job
vacancies, it is unlawful for employers to publish an advertisement which
indicates, or could reasonably be understood to indicate, an intention to
discriminate against applicants from a particular racial group (section 29 of
the RRA). Employers should also avoid requiring information such as length of
residence in the UK, and where a particular qualification is required, it
should make clear that a fully comparable qualification obtained overseas is as
acceptable as a UK qualification.

Under section 4(1)(a) of the RRA it is unlawful to discriminate on racial
grounds in the arrangements an employer makes for the purpose of determining
who should be offered employment. Accordingly employers must not use
recruitment methods which preclude or disproportionately reduce the numbers of
applicants of a particular racial group, and which cannot be shown to be
justifiable.

Against that background, what are the implications for employers whose
recruitment practices include advertising vacancies and processing job
applications received via the Internet?

Employers’ websites may be accessed via the Internet by prospective job
applicants from around the world. They may be inundated with applications from
applicants who do not enjoy any right to work in the UK. Section 8 of the Act
makes it unlawful for an employer to employ persons who are not entitled to
work here. How is an employer to comply with its obligations under the 1996 Act?

The Home Office’s code of practice aims to provide employers with guidance.
As with the CRE code of practice, while a failure to observe the code will not
of itself constitute a breach of the law, such a failure will be admissible in
evidence in any employment tribunal proceedings and the tribunal may take
account of the code, if it is relevant.

The Home Office code advises that employers should ensure that no
prospective job applicants are discouraged or excluded either directly or
indirectly because of their appearance or accent. Assumptions should not be
made about a person’s right to work or immigration status on the basis of their
colour, race, nationality or ethnic or national origin or the length of time
they have been in the UK. All job selections should be on the basis of
suitability for the post.

The code reminds employers of the need to ascertain an applicant’s right to
work, which may be established by the production of any one of a number of
documents. It advises that: "There is no need to ask for an applicant’s
immigration status, apart from asking if he or she needs a work permit. Such
enquiries could mislead you into taking decisions which might constitute
unlawful racial discrimination."

The best way to ensure you do not discriminate is to treat all applicants in
the same way at each stage of the recruitment process, for example, when
supplying an application form, you could include a reminder that the successful
applicant will be asked to produce one of a list of specified documents – and
attach the list.

The code goes on to remind employers that applicants may be asked to provide
one of the specified documents at any stage before they commence work.
"Depending on your recruitment processes, you may find it most convenient
to request the document from all those called to a first interview, or just
from those called to a second interview, or only from the person chosen to fill
the vacancy. It is perfectly satisfactory to ask for a document only from the
person chosen to fill the vacancy if that is most administratively
convenient."

This last suggestion seems unlikely to reflect the approach employers will
wish to take in practice. What employer would wish to go to the time, trouble
and expense of a comprehensive recruitment process, leading to their making a
job offer, only to discover that the successful candidate has no right to work
here?

In general, employers will only be granted a work permit in respect of a job
candidate where it can be demonstrated that the employer has advertised the job
in the most appropriate medium that provides the best way of reaching suitable
qualified "resident workers" ie, workers who are nationals of
countries in the European Economic Area (EEA) or people who have settled status
in the UK within the meaning of the Immigration Act 1971.

Ordinarily, work permits will not be granted where the employer (who must
apply for the work permit, rather than the job applicant) fails to demonstrate
that there are no suitably qualified "resident workers" to whom the
job might be offered. The employer may apply for and be granted a work permit,
but this is likely to incur additional trouble and expense, to say nothing of
the delay in the commencement of the candidate’s employment. If the work permit
is refused, the employer may have lost the opportunity to offer the post in question
to other candidates on its shortlist who may, in the meantime, have secured
jobs elsewhere.

If an employer readily expects to be able to satisfy its recruitment
requirements from job applicants who are "resident workers", will it
be unlawfully discriminating against other applicants if it declines to process
applications from applicants for whom it would need to seek a work permit? It
may be argued that it is indirectly discriminatory for an employer to impose a
requirement or condition that job applicants must have an existing entitlement
to work in the UK. Plainly, while such a requirement would not be designed to
exclude applicants on racial grounds, the practical effect would be to exclude
the majority of prospective applicants of a wide range of racial groups
resident outside the EEA. Whether an employer would be objectively justified in
imposing such a requirement or condition must depend upon the particular facts
in each case, including the nature of the posts for which the employer is
recruiting, the number of applications received and the likelihood of the
employer seeking and being granted a work permit in respect of any particular
vacancy.

The reality may be that job applicants who seek to apply for jobs via the
Internet are unlikely to institute proceedings against an employer here, when
they are resident abroad. The practical difficulties of pursuing such a claim
are self evident. Nonetheless, the risk must exist.

Looking ahead

The pitfalls for employers on recruitment are likely to increase when
legislation is introduced to give effect to the Race Directive and Framework
Directive. The former must be implemented by 19 June 2003. It makes it unlawful
to discriminate on race or ethnic grounds, including discrimination in access
to employment and self-employment and access to occupations. Indirect
discrimination is defined as occurring where an apparently neutral provision,
criterion or practice would put a person at a particular disadvantage, when
compared with others, unless objectively justified by a legitimate aim and the
means of achieving that aim can be shown to be necessary and appropriate. This
contrasts with the narrower definition under the RRA.

The Framework Directive outlaws discrimination, among other things, on
grounds of age, religion or sexual orientation. Protection against
discrimination on grounds of sexual orientation and religion must be introduced
by 2 December 2003. The requirements in respect of age and disability
discrimination must be complied with by December 2006. Again, protection is
afforded in relation to employment, self-employment and occupations.

The Government has now implemented the Burden of Proof directive and new
regulations will come into force on 12 October 2001, to shift the burden of
proof in sex discrimination cases onto the employer (see October’s Employers
Law for more details). The definition of indirect sex discrimination will be
amended to substitute the concept of an unjustifiable "requirement or
condition" with an unjustifiable "provision, criterion or
practice" which is indirectly discriminatory.

No doubt, in due course, we will see case law develop, as this new
definition is tried and tested before the employment tribunals and the
Employment Appeals Tribunal. Employers will need to monitor these developments,
and adapt their policies and procedures, including their recruitment practices,
to cater for the changes in UK discrimination law in the months and years
ahead.

Rachel Dineley is a partner in national law firm Beachcroft Wansbroughs

Latest advice from the CRE

In response to our enquiries, the Commission had the following advice for
Internet recruiters.

– It is suggested employers include a statement on websites such as,
"We are unable to apply for work permits until all EEA options have been
eliminated", or words to that effect.

– Employers should state on websites: "It is unlawful to employ a
person aged 16 or over who does not have permission to live and work in the UK.
We will not be able to engage you if you cannot produce, when requested, one of
the following documents…" and list the documents.

– It is recommended that applicants be asked to provide specified documents
only at shortlist stage or when offering the post.

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