Non-EU job applicants: Olatokun was an agency worker who moved into a permanent position. She was given an application form – a standard form issued to all applicants requiring details of place of birth.
Ikon’s policy was to request a passport from employees born outside the EU, to avoid an offence under the Asylum and Immigration Act 1996, which states that an employer who employs a person who is subject to immigration control is guilty of an offence if the employee has not been granted leave to enter or remain in the UK. An employer has a defence if a specified document has been produced to the employer prior to the commencement of employment.
Ikon requested Olatokun’s passport even though it would not have received protection from the defence as she had already commenced employment. No passport was forthcoming and she was dismissed.
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Olatokun appealed, enclosing a letter from the Home Office which outlined her conditional right to work, but did not attend an appeal hearing because the passport had not turned up. Olatokun then brought a claim of discrimination.
The tribunal held that the fact that a different standard was applied to non-EU citizens as against those from the EU may be discriminatory, but it was sanctioned by the Asylum Act and protection was obtained from section 41 of the Race Relations Act 1976, which states that any act of discrimination will not be unlawful if it is done under statutory authority. Olatokun appealed, but the Employment Appeals Tribunal (EAT) upheld the original decision.
