EU nationals are now subject to immigration controls. That means more UK employers need to know more about business immigration and discrimination. Our business immigration solicitors have provided 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?
- What forms can race discrimination take?
- 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
- Right to work checks, discrimination issues and EU nationals
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. Rightly, UK 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 both business immigration law and discrimination within the context of employment law.
There are two principal pieces of legislation:
- Under the provisions of the Immigration, Asylum and Nationality Act 2006 it is 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
- Under the Equality Act 2010 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. This is because 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. This can be achieved through carrying out the right to work checks. Those 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, ethnic or national origin. So is widely defined. Discrimination could therefore take place against say a French national, any other EU or non-EEA citizen or other people. For example, Irish travellers.
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. Settled workers also have a protected characteristic by virtue of their ethnicity or national origin.
Are all sponsored workers protected by the Equality Act 2010?
Although a sponsored worker will fall within the protected characteristic of race, they may also have other protected characteristics as defined by the Equality Act 2010, and thus get protection under the Act. However, business immigration and employment law solicitors say that when it comes to immigration status as a sponsored worker, whilst the sponsored worker has a protected characteristic it doesn’t mean that a court would hold that any behaviour complained of was discrimination on the grounds of race, as opposed to the subtle distinction of discrimination on the grounds of immigration status.
What is immigration discrimination?
Discrimination on the basis of immigration status is potentially distinct to discrimination on the basis of race or nationality. 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 by them was motivated by their immigration status as opposed to their race or nationality.
The Supreme Court has ruled that discrimination on the basis of immigration status (as opposed to race or nationality) doesn’t amount to racial discrimination under the Equality Act 2010. This was decided in the case of Taiwo v Olaigbe and another; Onu v Akwiwu and another  UKSC 31, where the court ruled that two Nigerian employees were treated in the way they were because of their immigration status rather than due to their race or nationality. The court said 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 wasn’t drafted to include immigration status as a protected characteristic.
Likewise, in the case of Mruke v Khan  EWCA Civ 280, the court held that a migrant worker’s treatment by her employer wasn’t down to her race but due to her socio-economic circumstances, and that wasn’t indissociable from the claimant’s nationality or national origins. Thus, the race discrimination claim failed as neither immigration status or socio-economic circumstances are protected characteristics.
What are the protected characteristics under the Equality Act 2010?
In addition to race, under the Equality Act legislation protected characteristics are defined and listed as:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
A sponsored worker may therefore have a number of 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.
Discrimination on any of the above protected characteristics can sometimes be difficult for an employer or their HR department to recognise or measure. As although discrimination is taking place, it isn’t recognised as such by the perpetrator or victim as the behaviour is so ingrained and unconscious that the victim doesn’t perceive the behaviour as discriminatory, and they accept it as the norm. Alternatively, an employee may have heightened sensitivities. For example, to any workplace conversations on Brexit and political viewpoints.
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. But business immigration and employment law solicitors understand that the issues are 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 can be shared language or cultural values or a preconceived belief that those overseas workers will work harder and take less time off work than a settled worker.
- 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 not sponsored workers. That is 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 sixty days. Knowing that a redundant worker will find it difficult to secure a new employer who is able to 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 from overseas and on time limited work visas from the criteria for promotion. But by doing so it promotes discrimination and a class of managers that aren’t diverse in their make-up. That can it itself lead to more feelings of disquiet and concern from sectors of the workforce.
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 the 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.
What forms can race discrimination take?
Discrimination can take many forms including:
- Direct discrimination - where a person treats another person less favourably than they treat or would treat others as defined in section 13(1) of the Equality Act 2010. Section 13(5) of the Act prohibits segregation of one person or persons from others where the protected characteristic is race. For example, placing all sponsored workers in one work group thus segregating them from settled non-sponsored workers.
- Indirect discrimination – where rules or arrangements are made that are applicable to everyone, but put some people with a protected characteristic at an unfair disadvantage from the 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 as follows – an employer has a policy of only promoting employees who have been employed by the firm for over six years. This may rule out many overseas workers on time limited visas for promotion, but it isn’t direct racial discrimination if it is dissociable from immigration status. In addition, an employer might be able to justify the policy in an industry or job role where continuity of employment is justified as a criteria for promotion.
- Harassment – unwanted behaviour, that in the context of discrimination is associated with a person’s protected characteristic, that either violates the victim’s dignity or creates an offensive environment. Harassment can be focussed on an individual or on a class of workers. For example, based on gender or a specific nationality. Name calling or teasing can amount to harassment, even if it is unintentional or subtle and insidious. For more detail, read our article on workplace harassment.
- Victimisation – treating a person unfairly because they complained about discrimination or harassment.
For a claimant to bring a claim for race discrimination under the Equality Act 2010 they not only need to fall within the definition of race as a protected characteristic (and this is widely defined to include nationality), but they also need to be able to establish that:
- They were discriminated against.
- That the discrimination was motivated by racial reasons. Poor or discriminatory treatment that is due 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, as discrimination due to immigration status isn’t a protected characteristic, unlike a person’s race or nationality. Depending on circumstances, this can be a fine distinction.
Comparators and race and immigration discrimination claims
An employee who makes a claim of 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 to 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 status-based claims. Care needs to be taken when looking at the specific circumstances, as in the case of Taiwo, where the court held that discrimination wasn’t due to racial reasons but because of the worker’s status as a vulnerable migrant worker. Having concluded that the discrimination wasn’t because of race the court then didn’t need to look at a comparator.
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 the 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.
The case law says an employer having an English language requirement for a job may be indirectly discriminatory unless the English language requirement can be objectively justified. For example, a shop requiring all staff to have good English language skills because job roles are inter-changeable and so any employee may be in a customer-facing role, may justify an English language requirement. 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 use of the English language in the work place, 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 work place 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 it is best that any such policy says 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 either settled workers from the UK or overseas based job candidates it is essential that the recruitment process doesn’t discriminate against any candidates on the grounds of race or nationality. This equally 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 and are either EEA or non-EEA nationals.
If an advertised job post attracts either overseas job applicants or workers present in the UK on work visas looking to move to a new sponsored employer, then you shouldn’t automatically rule overseas job applicants out because 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. Read our guide on illegal working legislation.
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 rather than the application process affected by other factors.
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
For additional information, read our article about recruitment and avoiding discrimination claims.
Right to work checks, discrimination issues and EU nationals
With the end of free movement for EU citizens the job recruitment process has become that much more complex for HR directors, especially when many EU based job applicants consider themselves settled in the UK without the need to prove their status, having enjoyed free movement for so many years. However, right to work checks are necessary for all employees whatever their nationality or race. The government has produced guidance on right to work checks for EU nationals and it can be accessed on the government website.