UK employers need to know a bit about business immigration and discrimination law. Our business immigration solicitors provide some guidance for UK employers recruiting overseas workers on the tricky topic of immigration and discrimination.
- The law on immigration and discrimination
- What is the definition of race as a protected characteristic?
- Do all sponsored employees have a protected characteristic?
- Are all sponsored workers protected by the Equality Act 2010?
- What is immigration discrimination?
- What are the protected characteristics under the Equality Act 2010?
- What is immigration-based discrimination?
- Race discrimination claims
- Comparators and race and immigration discrimination claims
- Does the discrimination need to be by an employer to found a claim?
- Immigration discrimination and English language requirements
- Avoiding immigration-based discrimination allegations during the recruitment process
The law on immigration and discrimination
UK immigration law makes it a criminal offence to recruit an illegal worker who doesn’t have the right to work in the UK. The law also prevents discrimination against employees on the grounds of race or other protected characteristics. For UK business owners it is essential to understand the basics of business immigration law and discrimination within the context of employment law.
There are two principal pieces of legislation:
- The Immigration, Asylum and Nationality Act 2006 makes it a criminal offence for an employer to knowingly employ someone who doesn’t have permission to work in the UK, or who the employer has reasonable cause to believe doesn’t have permission to work in the UK
- The Equality Act 2010 states that an employer cannot discriminate against an employee, or a potential employee, who has a protected characteristic as defined in the Act. One of the protected characteristics is race
The two pieces of legislation don’t always sit comfortably together as HR directors must balance the importance of not discriminating against employees, or potential employees, with the legal requirement to comply with illegal working legislation to ensure that the business doesn’t employ illegal workers. The requirement to carry out right-to-work checks, especially when they have to be repeated because of time-limited visas, can feel targeted and discriminatory if handled incorrectly. However, if they aren’t carried out the business could face illegal working penalties.
What is the definition of race as a protected characteristic?
The Equality Act 2010 makes it illegal to discriminate against anyone because of race. Race includes colour, nationality, ethnicity, or national origin.
Do all sponsored employees have a protected characteristic?
By definition, all sponsored workers are from overseas and given the wide definition of race, including nationality and national origin, all have a protected characteristic. All settled workers also have a protected characteristic through ethnicity or national origin.
Are all sponsored workers protected by the Equality Act 2010?
Although a sponsored worker falls within the protected characteristic of race, they may also have other protected characteristics as defined by the Equality Act 2010.
Business immigration and employment law solicitors stress that immigration status alone is not a protected characteristic. To secure protection under the Act the worker must show that the discrimination complained of was due to their race as opposed to their immigration status as a sponsored worker. The distinction can be very subtle.
What is immigration discrimination?
Although race discrimination is broadly defined in the Act, it does not cover discrimination claims made by sponsored or migrant workers if the behaviour complained of was motivated by the worker’s immigration status as opposed to their race or nationality.
In the case of Taiwo v Olaigbe and another  UKSC 31, the Supreme Court ruled that although immigration status is a function of nationality, it isn’t so closely linked to nationality as to be indissociable from it, and that the Equality Act was not drafted to include immigration status as a protected characteristic.
What are the protected characteristics under the Equality Act 2010?
In addition to race, under the Equality Act legislation protected characteristics are defined as:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
A sponsored worker may therefore have several protected characteristics in addition to their race. Any discrimination must be linked to a particular characteristic. For example, teasing someone about their age rather than general teasing of a worker who happens to be over a certain age.
What is immigration-based discrimination?
Within the context of business immigration and employment news, discrimination is often seen as acting unfavourably towards a migrant job seeker or migrant employee. However, discrimination in the workplace can be far more complex than that. For example:
- A business owner can be accused of recruiting workers from his or her country of origin rather than trying to select candidates from settled UK workers or from other countries. The rationale for the owner’s recruitment decisions could be shared language or cultural values or preconceived beliefs.
- When looking at the criteria for who should be put in a redundancy pool or made redundant, a business owner or HR director may be tempted to select employees for redundancy who are British citizens because they’re aware that a sponsored worker won’t be able to remain in the UK if they are made redundant from their sponsored employment unless they can secure alternative work with another sponsoring employer within 60 days. Knowing that a redundant worker will find it difficult to secure a new employer who can sponsor them within that time frame, it can be tempting to save the jobs of those who will not only lose their income but their homes as well.
- Engaging in a promotion process that appears to discriminate against some sectors of the workforce. From an employer’s perspective, it may make business sense, for continuity reasons, to exclude those on time-limited work visas from the criteria for promotion. By doing so it may discriminate and create a class of managers that aren’t diverse in their make-up.
Understanding that discrimination can take many forms and may not always be immediately obvious is the key to successful HR management. At its most basic, discrimination is the unfair or unjust treatment of people based on protected characteristics under the Equality Act 2010. However, an employer then needs to distinguish, from a legal point of view, discrimination that is racially motivated as opposed to immigration motivated.
Race discrimination claims
For a claimant to bring a claim for race discrimination under the Equality Act they need to have the protected characteristic of race (and this is widely defined to include nationality) and they also need to be able to establish that:
- They were discriminated against
- The discrimination was motivated by racial reasons. Poor or discriminatory treatment that is down to an employer thinking that the sponsored worker won’t leave the employment because of their immigration status and their inability to find another employer to sponsor them probably won’t be classified as race discrimination. Depending on the circumstances, the distinction between racial and immigration status discrimination can be very subtle.
Indirect discrimination involves rules or arrangements applicable to all workers but the rules put some people with a protected characteristic at an unfair disadvantage from others. The ban on indirect discrimination means that an employer must not have policies or practices in place that appear neutral in nature but have the effect of disadvantaging employees or job applicants of a particular race unless the employer can show that they are justified.
An example of when racial discrimination and immigration discrimination get confusing is when an employer has a policy of only promoting employees who have been employed by the firm for over a set number of years. This policy may rule out many overseas workers on time-limited visas for promotion. The policy isn’t racial discrimination if it is dissociable from immigration status. In addition, an employer might be able to justify the policy in an industry where continuity of employment is justified as a criterion for promotion.
Comparators and race and immigration discrimination claims
An employee who claims direct race discrimination has to demonstrate they have been treated less favourably than either a real or hypothetical comparator whose circumstances are not materially different from theirs.
When it comes to a race discrimination claim, the relevant ‘circumstances’ are the factors the employer has considered in treating the claimant they did, with the exception of considering the person’s race or nationality. This means the comparator must be someone who is the same as the claimant in all material respects but is not of their race.
The Equality and Human Rights Commission has produced codes designed to provide detailed guidance to organisations about what the Equality Act means. Courts and tribunals must take the codes, such as the EHRC Employment Statutory Code of Practice (The EHRC Code), into account in cases involving areas they cover.
The EHRC Code confirms that for direct discrimination claims, the protected characteristic needs to be a cause of the less favourable treatment, although it doesn’t need to be the main or only cause. That guidance can make it difficult when looking at what may either be racially motivated or immigration based claims.
Does the discrimination need to be by an employer to found a claim?
If an employee discriminates against or harasses another employee who has a protected characteristic, the employer will be liable for the discrimination unless they can show that they took reasonable steps to prevent such conduct from taking place. The employee who carried out the discrimination may also be liable.
To secure a defence to a claim of discrimination it is important that an employer can demonstrate the steps they took to prevent such behaviour, such as:
- Published policies on bullying and harassment in the workplace
- Notifying third parties that harassment of employees is unlawful and isn’t tolerated by displaying a public notice
- Open door policies for complaints
- Ongoing staff training
- Monitoring staff through appraisals
- Reviewing harassment policies
- Use of staff forum groups
- Acting on every complaint of harassment and investigating
Immigration discrimination and English language requirements
Although many visas require a visa applicant to meet a minimum English language requirement, many business owners don’t know whether it is discriminatory to insist that English is spoken by all employees during working hours. This can be an issue for some employers where large sections of a workforce share a common language that isn’t English.
If an employer imposes an English language requirement it may be indirectly discriminatory unless the English language policy can be objectively justified. For example, a shop requires all staff to have good English language skills because job roles are inter-changeable and any employee may be put in a customer-facing role. However, the English language requirement may not be objectively justified if the worker’s contractual role limits their job description to a non-customer-facing role.
Employers need to tread carefully when it comes to the use of the English language in the workplace, as whilst it may be reasonable to insist on the use of English in customer-facing roles or for health and safety reasons, it is another matter when an employer objects to another language being spoken during work breaks.
The Advisory Conciliation and Arbitration Service (Acas) says that employers should be wary of limiting the use of other languages within the workplace unless they can justify any prohibition with a business reason. In every business, it is a question of balance as, for example, in a predominately French or Polish-speaking workplace an employee might feel bullied through exclusion because of the non-English language barrier.
If an employer decides that it is necessary to introduce a language policy any such policy should say the requirement is to speak English (rather than prohibit one language). The policy should also be written down and reviewed to ensure that there is an ongoing business need for the policy and that it is applied consistently so that all non-English languages, whether they are French or Polish etc, are treated the same.
For more information, read our article on workplaces and English language policies.
Avoiding immigration-based discrimination allegations during the recruitment process
If the job you are advertising attracts settled workers from the UK and overseas-based job candidates the recruitment process mustn’t discriminate against any candidates on the grounds of race or nationality. This applies whether the job applicants:
- Were born in the UK
- Are settled workers with indefinite leave to remain or workers who have acquired British citizenship or who have pre-settled status or settled status under the EU Settlement Scheme
- Are overseas workers on time-limited visas
There is a need to balance:
- Obligations as an employer under the Equality Act 2010
- Complying with the Immigration Rules and legislation, such as illegal working legislation and the need to carry out right-to-work checks.
The government has produced a code of practice for employers: avoiding unlawful discrimination while preventing illegal working.
Job candidates should be selected purely on merit and visa issues should only be checked at the final stage, rather than the application stage of the job process, so the candidates are chosen on their skills and aptitude.
Whilst it is unlawful to treat a job applicant less favourably on the grounds of their race or nationality, a business is legally required to establish whether an employee or a prospective employee has the right to work in the UK. That may mean checking that an overseas candidate has the appropriate business or work immigration visa, so any offer of employment should be made conditional on the employee:
- Having the right to work in the UK or
- Obtaining and maintaining appropriate immigration status