Can asking immigration questions during recruitment be seen as race discrimination?
A recent case was brought against a solicitors’ practice which did not accept applications for training contracts from applicants who required a work permit. The firm tried to objectively justify it on various grounds but it failed at Tribunal and at the Employment Appeal Tribunal. It raised the question of whether there could be any part of the recruitment process where immigration issues are involved that could amount to direct or indirect discrimination.
The case is too lengthy to go into here but it did raise issues about when to ask questions about immigration status, what to ask and what to do with the information.
As a starting point, some guidance can be found in the Statutory Code of Practice on Racial Equality in Employment. Employers would be wise to familiarise themselves with this. One point which is straightforward is that it is acceptable to make clear on an application form that the applicant must have a right to work and be able to give evidence of this before he or she starts employment. An employer may include further questions on an application form or during the interview stage requiring an applicant to provide details of his or her current permission or details of the permission that could be obtained. It should ask the same questions of all applicants and confine questions to immigration status, not adding more general questions about nationality.
As an alternative, an employer could raise the right to work at the point that it makes an offer of employment; the offer can be conditional upon the individual having the right to work and providing original documents before the employment starts. The main point is that if issues about nationality are raised too early on, the greater the risk of challenge of the purpose and potential use of that information, which could potentially lead to a race discrimination claim. [Osbourne Clarke Services v Purohit]
Source: Breeze and Wyles Employment Law Update