An international recruiter’s dilemma
An international recruiter’s dilemma ...
'Recruitment is an expensive exercise. Where a UK based role is likely to attract applicants from around the world, we do not want to discriminate but we do not wish to invest resources on candidates who are not eligible to work in the UK'.
What should we do?
1. Be aware of what might be discriminatory practices
In conducting any recruitment exercise that attracts foreign national applicants, businesses should be careful not to discriminate on the grounds of nationality - for example
- It will be directly discriminatory under the Equalities Act 2010 to treat a person less favourably because of race or on racial grounds, for example, by rejecting all job applicants who do not have British nationality.
- It will be indirectly discriminatory to impose a condition such as a requirement that an applicant does not need a work permit or requiring that a person has been resident in the UK for over 5 years, if that requirement cannot be objectively justified
Further guidance is found in the Equality Act Code of Practice on Employment at section 16.66-16.68 and the case of Osborne Clarke Services v Purohit  0305_08_0902.
2. Be aware of the employer’s obligations to prevent illegal working
An employer has a duty under The Immigration, Asylum and Nationality Act 2006 to prevent illegal working and an employer is entitled to and indeed should (in order to have a statutory defence to a claim of employing an illegal worker) retain evidence to show that an employee has a right to work.
That evidence an employer needs is found in the Code of Practice on Preventing Illegal Working.
- The Code includes 2 separate lists to evidence a right to work - List A and List B. List A and List B documents are set out on pages 14 and 15 of the Code.
- List A documents show that the holder is not subject to immigration control, or has no restrictions on their stay, so they have an ongoing right to work in the UK.
- For staff from outside the UK and EEA countries evidence in the form of List B is necessary.
- List B documents show that the holder has been granted leave to enter or remain in the UK for a limited period of time and, or, has restrictions on their right to work.
3. Be aware of sponsorship options
A citizen of the United Kingdom, Switzerland or one of the European Economic Area (EEA) countries, currently has the right to work in the UK and so should be able to produce the documents set out in List A (see 2 above)
An individual who is not an EU citizen may have obtained a visa which permits working in the UK and hence be able to show the documentary evidence set out in List B (see 2 above).
An employer might wish to sponsor an applicant in order that they become eligible to work. Detailed guidance on this is found at https://www.gov.uk/government/collections/sponsorship-information-for-employers-and-educators
4. Steps to square the circle
- Generally applicants will be provided with an information pack and (usually) an application form and it is this which can best be used to ensure appropriate applicants. It is perfectly acceptable to include a very clear statement in such documents that short-listed applicants, will be required to produce original, acceptable documents, as set out in List A or B (see 2 above) to establish the right to work.
- You should not however rule out obtaining work permits unless there is a strong objectively justifiable reason, possibly very clear and specific evidence that a permit would not be granted. Note however that in the case of Osborne Clarke Services v Purohit  arguments based on cost and clogging up the system were rejected and the Tribunals found that the employer did not provide evidence to justify the assumption that there was no point in applying for a work permit on the basis that one would not be obtainable.
- You can ask applicants to provide the specified document(s) to obtain a statutory excuse at any stage before they start work. This could be from all those called to a first interview, or just from those called to a second interview, or only from persons short-listed to fill the vacancy. If you ask for documents from one applicant, you should make sure you ask for documents from all applicants being considered at that stage.
- With regard to adverts, it is safest to avoid reference to right to work completely. Certainly a statement that candidates ‘will only be considered if they have a right to work’ would be unwise. A statement that includes ‘This is a U.K based role and so employment will be conditional on the right to work in the UK’ would best be accompanied by an acknowledgement that sponsorship may be available if appropriate.
- The employer must make the final offer of employment conditional on the foreign national employee obtaining and maintaining appropriate immigration status. There should also be a term written into the contract of employment, which obliges the employee to ensure that the appropriate immigration status for the purposes of employment is maintained, whilst the employee remains employed by the company.
For more comprehensive information please see the list of Emplaw Online law cards (guides) under the topic Recruitment
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NOT LEGAL ADVICE. Information made available in this article is for information purposes only. It is not, and should not be taken as or relied upon as legal advice. Do not delay in seeking legal advice because of something you have read in this article.