Employment Law Update (April 2009)

More Immigration pitfalls for employers

Employers who may already feel they are acting as unofficial immigration officers for the government now face a further headache as the Employment Appeals Tribunal has ruled it unlawful to make it a condition of applying for a job that an applicant is actually entitled to work in the UK.

In an unusual case, the Employment Appeals Tribunal was asked to rule on whether it was legal, under UK Race Discrimination laws, to prevent a person applying for a job if he or she would only be able to take the job if the employer successfully obtained a work permit.

In the case, the employer, no doubt mindful of the difficulty of getting work permits for overseas applicants for jobs where there was a ready supply of well-qualified applicants from the UK or the EU, stated in its application process that applicants who required a work permit would not be considered.

The applicant was applying for a job as a trainee solicitor, a job for which there < were eleven applications for every job on offer.  The employer relied on UK Border Agency guidance on obtaining work permits, which make it clear that to obtain a work permit for an overseas worker, the employer would have to have proof of good reasons for not employing applicants who already had the right to work in the UK.

In the judgment, the Employment Appeals Tribunal said that the employer could not pre-judge whether they would not be successful in obtaining a work permit for an excellent overseas candidate if they tried, and that it was therefore racial discrimination to rule out such applicants at an early stage.

The case was unusual in that there was an on-line application process, and if an applicant was unable to state that he or she did not require a work permit, a warning message was displayed stating that the application would not be considered.

The case highlights the problems employers have in reconciling conflicting government aims of restricting immigration on the one hand – the "British jobs for British workers" line – and long-established anti-discrimination measures on the other.

At-a-glance

• Employers must not make it a precondition of applying for a job with them that an applicant already has the right to work in the UK.
• Employers should select the best candidate for the job
• Employers should always check that the selected applicant is legally entitled to work in the UK before he or she starts work.