Recruitment Selection and the Right to Work in the UK

It is fair to say, that if you are an employer, you may well be facing significant difficulties in recruiting and retaining employees in your workplaces at present. External factors, such as Brexit and a post pandemic ‘boom’ , have led to a labour shortfall, with Organisations turning to online platforms, such as LinkedIn, to widen the scope of potential applicants/candidates.

This, of course, is leading to an influx of applicants from outside of the UK who do not have the requisite right to work status. Many employers are currently faced with the quandary; do we have to interview every applicant who meets our criteria, or can we deselect those who do not have the right to work in the UK?

This is a question we are being asked to advise on more and more.

Before deciding on their approach, employers need to be aware that deselecting candidates based on location/right to work status could potentially leave them vulnerable to claims of discrimination on grounds of race/nationality.

The law

It is indirectly discriminatory to apply a provision, criterion, or practice (the PCP) which, although applied equally to all in a situation, puts certain people (here those of a different nationality) at a disadvantage and which cannot be shown to be a proportionate means of achieving a legitimate aim. This covers not only individuals who are put at an actual disadvantage by a provision, criterion, or practice but also individuals who are deterred because of it. In this scenario those who are deterred from applying for the advertised position.

There is a defence to claims of indirect discrimination if the Organisation can show there is a legitimate business reason for having the provision, criterion, or practice and that it is applied in a way that is proportionate i.e., the PCP is no more discriminatory than necessary. This is referred to the ‘objective justification’ defence.

Case law has held that cost alone is unlikely to justify discrimination –it cannot be a valid reason to simply say it was cheaper to discriminate. Furthermore, the more the PCP has a discriminatory effect, the more difficult it is for an employer to objectively justify it.

Objective Justification and Right to Work Checks

The issue of indirect race discrimination and right to work checks was considered in 2009 by the GB Employment Appeal Tribunal (EAT) in the case of Osborne Clarke Services v Mr A Purohit. The EAT decisions are not binding in Northern Ireland but are highly persuasive. Osborne Clarke, a law firm, had a policy of not considering any applications for solicitor training contracts from individuals who required permission to work in the UK. Their rationale was that they had enough applicants from the resident labour market to always fill those posts.

Mr Purohit, an Indian national, had sought to apply for a training contract with the firm. In light of Osbourne Clarkes’ policy his application was not considered as he did not have the right to work in the UK.  At first instance, the Employment Tribunal found that the firm’s policy was indirectly discriminatory on the grounds of nationality, as the proportion of non-EEA nationals who could comply with it was considerably smaller than the proportion of persons not in that group who could comply (that is, EEA nationals) and the policy was not justifiable. Therefore, Mr Purohit succeeded in his claim of indirect race discrimination. The EAT upheld the original Tribunal’s decision, rejecting the employer’s argument that the policy saved time and costs as that was ‘an unattractive way of justifying indirect discrimination’.

The upshot of this is that having a rule that the Organisation will deselect those without the right to work in the UK your recruitment process would amount to indirect discrimination on grounds of nationality unless that rule could be justified by the business.

To justify the rule, the business would have to consider its business case. The costs alone of sponsoring the role or the business having to become a sponsor is unlikely to be sufficient.

The Code of practice for employers: avoiding unlawful discrimination while preventing illegal working (which extends to Northern Ireland) states:

“Job applicants and employees with a time-limited right to work

Job applicants should not be treated less favourably if they produce acceptable documents showing a time-limited right to work in the UK. Once a person who has time-limited permission to stay in the UK has established their initial and ongoing entitlement to work, they should not be treated less favourably during their employment, including as to the terms of their employment, opportunities for training, promotion or transfer, benefits, facilities or services, or by dismissing the worker or subjecting them to some other detriment, other than further right to work checks as prescribed in the guidance …”

The Equality Commission Northern Ireland (ECNI) does not cover this point directly (unlike its GB counterpart). In ECNI states:

“It is unlawful for an employer to discriminate:

• in recruitment and selection, including arrangements for deciding who should be offered employment; in the terms on which employment is offered; or by refusing or deliberately omitting to offer a person employment;”

In GB the recommendation is:

‘Eligibility to work in the UK should be verified in the final stages of the selection process rather than at the application stage, to make sure the appointment is based on merit alone and is not influenced by other factors.’ (See GB Code of Practice issued under the Equality Act 2010)

Practical Guidance for Employers

Organisations should not prevent individuals from applying for roles if they do not have the right to work in the UK at the date of application. Employers should (as far as possible) base selection purely on merit and right to work issues should only come into consideration at the last stages of selection. This is undoubtedly the safest approach for businesses and the best way to protect your Organisation from claims of unlawful discrimination.

If a preferred applicant requires sponsorship and the employer does not have a sponsorship licence and chooses not to apply for one, then the facts will have to be considered carefully to ascertain whether the decision is one that is legally justified. We recommend that you seek specific legal advice if the business is in this situation.

Any you require specific advice or support you should contact the Legal Team.

NORTHERN IRELAND EXTENDING PERSONS THAT CAN SIGN FIT NOTES (15 JUNE 2022)

The law will be changed from 1 July 2022 to allow a wider category of healthcare professionals to certify fit notes. This change will apply throughout the United Kingdom and the purpose is to ease pressure on GPs.

From 1 July 2022, in addition to doctors, those that will be able to sign fit notes will include:

• Nurses,
• Physiotherapists;
• Occupational Therapists; and
• Pharmacists

This will end the current rules that only allow doctors to legally sign fit notes.

The Northern Ireland Regulations were published on 10 June 2022 and can be accessed here

The Explanatory Note in the Regulations confirms that separate guidance will be available on https://www.nidirect.gov.uk to assist understanding of how to comply with fit note Regulations. This will be updated and publicly available on before 1 July 2022.

We will keep Members updated on this; if any Member has any questions they should not hesitate to contact the Legal Team

In response to the rising cost of living, the Living Wage Foundation announced on 29 May 2022 that it will be bringing forward its annual review of the rates. Instead of announcing the rates in November 2022 which they usually do, it will now do so in September 2022.

The Real Living Wage is the only UK wage rate based on the cost of living.

There is no obligation on Organisations to pay the real living wage, but many employers have chosen to sign up to it. The current rate is currently £9.90 in the UK.  Once the new rate is announced employers will be encouraged to pay staff the rate as soon as possible. More information can be obtained from https://www.livingwage.org.uk/news/living-wage-foundation-responds-cost-living-crisis-%C2%A0

The calculation of Holiday Pay has been a live issue for several years and more so since the Northern Ireland Court of Appeal (NICA) handed down its judgment in Chief Constable of the Police Service of Northern Ireland and another v Agnew and others [2019] NICA 32 on 17 June 2019.

From 2011 onwards, a range of cases in both the European and UK courts overhauled the previously settled position of how holiday pay was calculated, with employers now required to include a variety of additional components where employees did not have ‘normal’ remuneration. The UK case of Bear Scotland [2014] also established the principle that underpaid holiday pay cannot be claimed as the last in a series of deductions where more than three months has elapsed between deductions, thus limiting the potential for years of backdated holiday pay claims.

However, in 2019 the NICA  in Agnew found that a 3-month gap between payments does not necessarily break a chain of deductions and as Northern Ireland does not have the 2 years back stop in place in Great Britain (which limits wages claims to a maximum of 2 years) this ruling potentially opened the flood gates for years of underpaid holiday pay, potentially going back to 1996 when EC Working Time Directive was first implemented.

The Court of Appeal also upheld the concept, which first originated in the judgement of the Industrial Tribunal,  of the ‘composite whole, it being the theory that each day of holiday consists of fraction or percentage of:

• % Working Time Directive leave (20 days);
• % Working Time Regulations leave (8 days) and;
• % Any additional contractual leave (x Days)

 Agnew was appealed to the UK Supreme Court (UKSC) where it was initially listed for Hearing in June 2021. The case, however, was subsequently removed from the list at the request of the parties, to allow for settlement discussions to take place, facilitated by retired NICA judge, Sir Paul Girvan QC.

Whilst mediation meetings were held in March 2022, the Police Federation (who are supporting the employees claims) announced that the PSNI did not receive required authorisation from Department of Finance to approve settlement figures.

So, Agnew has now returned to the UKSC where it is relisted for Hearing on 14 and 15 December 2022.

There are thousands of holiday pay cases stayed in Northern Ireland Industrial Tribunals pending the outcome of the Supreme Court decision. The UKSC Judgement is also pending in another holiday pay case of Harper Trust v Brazel which they heard in November 2021.That case deals with the issue of how to calculate holiday pay correctly for atypical working patterns such as term time workers. The effect of all this is that the focus will remain on holiday pay for some time yet.

If your Organisation has not yet done so, you should complete an audit of how you pay holiday to ensure the Organisation is compliant as incorrect calculations could prove costly.

The Northern Ireland Department of Health has changed the guidance on Coronavirus (COVID-19): self-isolating and close contacts. This follows changes to the rules on testing that came into force on 22 April 2022.

In summary, the changes are to:

• the definition of a close contact;
• cessation of wider community contact tracing; and
• the rules on self- isolation. Specifically there is now no difference in the guidance for those who are vaccinated and those who are unvaccinated.

We have set out these changes below and how they will affect businesses.

Self-isolation for those who test positive for Covid (no change)

If employees test positive, they should self-isolate for up to 10 days from date they took Lateral Flow Device (LFD) test or the date symptoms started (whichever is sooner). That date is considered to be Day Zero.

As before, they can potentially end self-isolation early from Day 6, if they have 2 consecutive negative tests 24 hours apart. This applies to both vaccinated and unvaccinated persons as there is now no difference in their treatment.

Close contacts of someone with Covid

The guidance now defines close contacts as those that live in same household as the person who has tested positive for Covid.

Routine contact tracing in wider community has stopped. The emphasis is now on the person who tests positive identifying their close contacts (whether household or workplace) rather than individuals being notified by the Public Health Agency. These close contacts are not required to self-isolate but to be alert to any signs that they are developing Covid.

Close contacts will not be advised to do LFD unless they develop symptoms.

Advice to individuals who are close contacts (whether household or in the workplace) includes:

• Be alert for Covid symptoms;
• Avoid close contact with vulnerable persons;
• If develop Covid symptoms, do LFD and isolate if test;
• Do not visit hospitals / other health & care settings.

Organisations should again note that if the person is identified as a close contact, there is no longer any distinction in the rules that apply to the vaccinated or unvaccinated.

We are excited to return to our in-person conference and to reconnect with everyone.

The legal team and our guest speakers will be covering the most topical issues and important developments for employers and HR professionals.

This will be a great event and we look forward to seeing you there.

Mr Noel Kelly was appointed as the President of the Industrial Tribunals and Fair Employment Tribunal for Northern Ireland on 4 April 2022, taking over from Mrs Eileen McBride who retired.

Members will be aware that, due to Covid 19, the Tribunals Office has been working on a hybrid basis and at reduced capacity since March 2020. This has had a significant impact on the progress of cases.

On 6 May 2022, Mr Kelly issued his first Presidential Guidance aimed at increasing the disposal of business as rapidly (in line with risk assessments) as possible.

The key points are:

Killymeal House re-opens for in-person Hearings

• On 25 April 2022, Killymeal House re-opened for in-person hearings. Adelaide House will no longer be used by the Tribunal.
• Six rooms are now in use for Hearings and 3 rooms will be used to allow larger groups to attend via video conferencing technology.

Expedited Hearings

The Guidance allows for Hearings to be expedited so that an earlier Hearing date can be provided in certain circumstances. Reasons where this may be granted include:

• previous postponements and consequent delay;
• the physical or mental health of a party or witness;
• financial difficulty of a party;
• statutory appeals against prohibition notices, where for example a business has been or could be forced to close pending determination of the appeal by the tribunal; and
• (v) the need to secure the availability of a relevant witness where that availability is limited. The decision whether or not to expedite a hearing is a judicial one

Public Attendance

•  In keeping with the principles of open justice, provision has also been made for members of the public to attend Hearings. The weekly hearing schedule is published on the Tribunal’s website to facilitate this.
• This will be welcome by those persons that wish to attend a Hearing as part of their development or in preparation for a case that they are involved in.

Case Management Preliminary Hearings

• Case Management Preliminary Hearings will continue to be conducted by WebEx or telephone, unless there is a requirement for reasonable adjustments/special arrangements or where there are complex issues which require them to be conducted in person.

As a result of Mr Kelly’s new guidelines, we should begin to see cases progressing more quickly through the Tribunal, which will be welcome news for Members.

You can access the full document at: Presidential Guidance 6 May 2022

If any Member has any queries, please do not hesitate to contact the Legal Team.

The Issues

Brexit was undoubtedly a political vote about migration and started a trend of thinking in terms of  “us” and “them.” Political rhetoric from politicians such as President Trump who wants to build a wall to keep the Mexicans out has increased this type of “us” and “them” thinking.  Tragic terrorist acts and threats have also resulted in an increase in hate crimes and hate speech.  All this has led to a false impression that some level of racial resentment/intolerance is acceptable.  For employers, this creates difficulties in maintaining neutrality in the workplace and taking reasonable steps to ensure that employees are not discriminated on racial grounds.  This article explores the position in Northern Ireland and looks at the legal perspective, before considering what can employers can do to promote good race relations.

Northern Ireland

Northern Ireland has only 0.1% of the total UK migrant workforce.  The 2011 census (figures of which are out of date but are the most up to date) stated that there were 81,453 people born outside the UK or the Irish Republic.  This represented 4.5% of the total Northern Ireland population of 1.8 million; of that 1.8% of the population believed that they belong to a minority ethnic group.

Migrant workers primarily live in Belfast, Dungannon, Craigavon, Newry and Mourne areas and predominantly come from Eastern European countries such as Slovakia, Lithuania and Poland.  Approximately 5% of the Northern Ireland workforce is comprised of migrant workers.  Statistics show that migrant workers tend to fill posts that are hard to fill (such as cleaning and agriculture jobs) and tend to be lower skilled and lower paid.  For employers in those sectors and geographical areas the impact of Brexit remains a real concern.

So, does Northern Ireland have any race issues in the workplace?  According to the number of Tribunal Claims you may be led to think that there is not.  Since 2015 there have been 184 race discrimination cases lodged, 79 of which were in 2016.  This number is similar to the number of religious discrimination claims in that year.  However, these figures may misrepresent the real situation and that there is evidence that migrant workers are less likely to complain particularly about low level abuse.  Other factors, such as language barriers and lack of knowledge of how to lodge a claim, may be behind these numbers.

The Law

There are some differences between the race discrimination laws in Northern. Ireland and GB that are not explored in this article.  However unlawful race discrimination includes the familiar concepts of direct and indirect discrimination, harassment and victimisation.  For example it would be direct discrimination if a black employee complained about a manager’s conduct and a senior manager then commented erroneously that it was a race discrimination complaint.  As direct race discrimination cannot be justified motive is irrelevant.

Indirect discrimination could occur where a Polish person with little written or spoken English applied to be a cleaner, could do the job but was not shortlisted due to their lack of English.  Whilst indirect discrimination can be justified it is unlikely that in this case the requirement for written or spoken English could be shown to be a proportionate means of achieving a legitimate aim.

Examples of racial harassment would include racist jokes (French girl subject to ‘oh la la’ jokes) banter and insults (‘Go back home you foreigner’) or mimicking accents or the way a person speaks.

It would be victimisation if an employee raised a race discrimination complaint then applied for a more senior position but was not selected on grounds that the interviewer consciously or unconsciously took into account the fact the employee had raised a complaint.

Employer Liability

Employers are liable for anything their employee does in the course of their employment.  The definition of ‘in the course of the employment’ has been extended by case law.  Essentially, if there is a link back to the workplace then the employer may be liable regardless of whether the act was done with their knowledge or approval.  Importantly the offending employee can also be personally liable.  Compensation is joint and severable against any named Respondent and is also unlimited.  The employer does have a defence, if it took all reasonable steps to prevent the employee from doing that (discriminatory) act or from doing anything of that description.

Reasonable Steps Defence

The reasonable steps defence goes some way towards the employer maintaining good race relations in the workplace.  In order to succeed with the defence, employers must take reasonable steps before any discrimination has occurred and thereafter deal with the matter effectively once it has occurred.

To succeed with the defence, as a minimum, employers must not only have equal opportunities and anti-harassment and bullying policies, but also have:

1. Put the policies into practice.
2. Reviewed the policies as appropriate.
3. Made all employees aware of the content of the policies and their implications.
4. Trained managers/supervisors/employees in equal opportunities and harassment issues.
5. Taken steps to deal effectively with complaints, including taking appropriate disciplinary action.

However, having policies and training is insufficient if it can be shown that managers turned a blind eye to racial harassment and banter in the workplace.

Maintaining good race relations

But good race relations is more than defending legal claims and there are sound business reasons for your business to fully support equal opportunities.  There is evidence to show that businesses who fully support equal opportunities have a more productive workforce, lower absentee figures, higher employee retention levels and higher staff morale.  This will all contribute to a workplace that is more productive.

Diversity and inclusiveness are currently key concepts in Human Resources.  It is recognised that a workforce can be diverse but not inclusive.  In order to be inclusive employees need to have a voice, feel valued and connected.  Whilst training is a vital step to creating a positive culture it is rarely enough on its own.  To be successful it needs to be led from the top down and senior leaders need to drive and support a culture that embraces differences.

Steps for your Organisation

Your organisation should consider its workforce composition and assess if any concerns have been raised through the Company’s processes e.g. exit interviews or appraisals.  Training should be refreshed in areas where it is required or where it is outdated.  Leaders should clearly demonstrate that they endorse equal opportunities.  Importantly, managers need to know how to respond to concerns raised both formally and informally as they tend to be the first recourse for workers.  In appropriate circumstances a good manager may be able to nip matters in the bud at an early stage to prevent issues escalating.  Your organisation should consider if it could successfully rely on the reasonable steps defence.  Being proactive to promote a more diverse and inclusive workplace, by gaining a better understanding of the cultures that exist in your organisation, will assist improving workplace relationships and is likely to contribute to increased productivity.

Impact of Brexit

Undoubtedly Brexit will have an effect on race discrimination.  Migration remains a central issue and it is unknown whether people will be able to move freely across the borders. This may lead to increased racial tension.  There is also some concern that there may be a roll back on equality laws.  This is complicated by the fact that equality law is devolved in Northern Ireland and we may see further areas of divergence in our laws from those in GB.  However it is clear from the Draft Programme for Government that equality and good relations are seen to be essential to ensuring a prosperous and thriving Northern Ireland