Indirect race discrimination a risk if recruitment policies limit applicants to European Economic Area

Employers could face indirect race discrimination claims if they introduce a blanket ban on job candidates from outside the European Economic Area (EEA), following an Employment Appeal Tribunal (EAT) ruling.

The EAT recently dismissed an appeal by law firm Osborne Clark Services against an April 2008 Employment Tribunal ruling that its blanket refusal to consider any applicant from outside the EEA (EU plus others including Switzerland, Norway and Iceland) for trainee positions constituted indirect discrimination.

The tribunal ruled that the firm’s policy adversely affected non-EEA nationals who, by virtue of their immigration status, needed a Border and Immigration Authority (BIA) permit to work in the UK.

Osborne Clark Services argued that even if they considered a non-EEA applicant for the trainee roles on offer they would have little prospect of obtaining a work permit from the BIA, and putting non-EEA candidates through the recruitment process would incur extra costs and raise candidate expectations.

Counsel for Osborne Clark Services told the EAT that in formulating its recruitment policy the company was not required to “have regard to some hypothetical or utopian situation which does not correspond with the reality, even though the reality may well be regrettable.”

The original tribunal hearing said Osborne Clark Services should not assume that there was no point in applying for a work permit.

Employment law firm Hammonds said the case had “worrying implications for employers with blanket policies of not accepting applications from non-EEA nationals requiring sponsorship under the points-based system. To avoid falling foul of the race discrimination legislation, employers with these types of policy should consider whether they need to amend their selection procedures”.

The case was brought by an Indian national Mr A Purohit, who applied online for a trainee solicitor contract in June 2007. After giving details of his background and academic qualifications he was told he did not meet the entry requirements: “We are sorry, but we are unable to accept applications from candidates who require a work permit to take up employment in the UK.”