Work Permits and Indirect Race Discrimination
11th March 2009
The case of Osborne Clarke Services v Purohit concerned a firm of solicitors which had a policy of not considering applications for traineeships from candidates requiring a work permit. In this case, the Mr Purohit was an Indian national. The firm took the view that it was too much of an administrative burden and that, in all likelihood, any application for a work permit would be refused because there was such a large number of applicants that the firm could fill the vacancies with nationals from within the European Economic Area (those not requiring a work permit).
However, the EAT has ruled that this policy was indirect race discrimination that could not be justified on the grounds that any application made in respect of those candidates for a work permit was likely to be refused. Reference was made to the Code of Practice on Racial Equality and Employment which states that "Information about eligibility to work in the UK...should preferably be verified in the final stages of the selection process, to make sure the appointment is based on merit alone, and is not influenced by other factors. Employers can apply for work permits and should not exclude potentially suitable candidates from the selection process."
Employers must, therefore, consider all applications from all candidates and should not automatically reject applications from prospective employees from outwith the European Economic Area. Employers are to appoint employees based on their merit and, if a work permit is required, employers should make the relevant application and leave it to the immigration authorities to determine the outcome.
Further information can be found at: http://www.bailii.org/uk/cases/UKEAT/2009/0305_08_0902.html
For more information, please contact:
Michael McLaughlin or Paul Brown (0141 228 8000)
The information contained in this article is given for general information only and does not constitute legal advice on any specific matter.