Hi Apologies for the length, a friend’s wife a foreigner has been working as a hot desker for a national newspaper who have their own in-house temping agency for the past 18 months, although she moved around departments in the initial stages she has however been working for one particular department for the past 14 months.
She is at the moment on a 2 year resident visa, which allows her to work, even permanent positions so long as the employer checks her visa every 12 months until she’s given indefinite leave to remain. She qualified for indefinite leave earlier this year, however the case worker may not have seen her certificate for Life in the UK Skills Test and therefore gave her a second 2 year term, with the explanation that she had not taken the test, she has since been trying to correct that with the home office and is therefore still applying for he status to be changed.
She applied for a permanent job with this national newspaper, but she was told she could apply only if she had indefinite leave to remain. However she works in the same department with another lady who has only a 1 year working visa but she’s on a permanent contract. Upon enquiring, one if it was the company policy to employ only people with indefinite leave to remain and two why this colleague who is on a one year working visa has a permanent job with the company, she was told they would get back to her.
Two weeks later, the head of the department she works in called her to tell her that HR said she can only apply for internal jobs with fixed term on duration Three days after, this same department head emails her that HR said (quote) ‘’ you can contact her if you want an answer regarding your question about someone being given a permanent contract and why your unable to be given one.
Upon contacting HR, she got an email saying (quote) ‘‘it does seem that another employee in ......was offered a permanent contract while on a temporary visa. We wouldn't normally do this, and we are now looking into this and with new visa sponsorship processes coming into place in the coming months we will be looking at our processes around this as a whole’’. When she asked to come by and see them, they still have not come back to her, her term of contract with the department ends in less than 2 weeks.
She wants to find out if she has been treated fairly and is she eligible to apply for a permanent role after all
Your post raises a number of issues about the way your friend's wife has been treated (either deliberately or otherwise) by her employer which would take too long to go into in a forum like this. You ask two basic questions about the scenario:
caesarlet: She wants to find out if she has been treated fairly and is she eligible to apply for a permanent role after all
On the question of fairness, that can't be definitively answered as it is very subjective. What you describe does not seem fair, but that does not in itself make what heppened legally wrong (employees can be treated totaly unfairly within the boudaries of employment legislation).
On the question of eligibility it depends on what side of the fence you are sitting. From your friend's point of view she is legally allowed to work in the UK - she has the proper paperwork for an employer to satisfy the requirments of the immigration laws currently in place. However, from the employer's point of view she is not - they seem to have have decided to apply a criteria that those under immigration control will only be considered if they have indefinite leave to remain.
This raises two more questions - what exactly is your friend's status and is the eligibility criteria imposed by the employer discriminatory.
Your friend's status appears to be that she has a 2 year extension on her visa - that is all the employer can work with at present because that is what her paperwork says (according to your narrative above). The fact that the immigration case worker made a mess of the paperwork is not relevant unless your friend gets an 'official' letter to state that that was the case and that her proper documentation is forthcoming.
The criteria of only employing migrants with indefinite leave to remain could be seen as discriminatory. Your friend would have to challenge the decision not to employ her for that reason in an employment tribunal to find out for certain. I am not able to be more specifc about any likelihood of success because there simply is not enough relevant information in your post.
If your friend is thinking of challenging any decision not to employ her then she must follow the statutory grievance procedure whilst in employment, or appeal against the decision to dismis her if she is dismissed. I would strongly advise that she seek professional advice from an employment specialist (one with immigration experience as well would be helpful). Discrimination claims are complex and it is easy for an unrepresented individual to get something seriously wrong if they are not getting help (either directly or in the background).
Hope this helps - wish her good luck!
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