Is Your Job Ad Breaking Discrimination Laws Without You Realising?

There is a worrying trend that is evolving in regard to job adverts, with many employers and recruitment businesses increasingly advertising roles so as to exclude applicants who would require sponsorship. It is also apparent that many who hold time-limited visa’s are sifted out of the process in the early stages making them unlikely to be shortlisted. One possibility for this rise could be due to the recent increase in the salary threshold for skilled worker visas, but unfortunately this would not be accepted as a justification by the Courts. So why then is this problematic?

The Equality Act 2010 (EQA) protects individuals from discrimination on the basis of various protected characteristics, including race and nationality. Section 9 of the EQA 2010 specifically prohibits discrimination based on nationality, which includes a persons immigration status. If someone is treated less favourably than another person because of a protected characteristic this will likely amount to direct discrimination. In the context of recruitment, direct discrimination based on nationality or immigration status would involve treating candidates unfairly or unfavourably due to their visa status. For example, rejecting a candidate solely because they hold a time-limited visa, despite being qualified for the role on offer.

Indirect discrimination can occur when a policy, practice, or criterion disadvantages individual with a particular protected characteristic. For example, requiring candidates to have indefinite leave to remain as a blanket requirement for all positions may indirectly discriminate against individuals who require sponsorship or who have a time-limited visa.

There may however be circumstances in which a rejection may be ‘justified’; for example, where the salary on offer for the role is less than required by the Home Office for the advertised role, or where there is not enough time for the business to apply for and get a Sponsor Licence for a time critical role. However, these ‘defences’ assume a considered rather than automatic rejection and should be used with caution.

The Home Office guidance on avoiding unlawful discrimination in the recruitment process makes it clear that employers should consider all prospective employees based on their merits and suitability for the role on offer, and not merely reject candidates based on the assumption they may not have a right to work in the UK. The guidance states that employers should:

1. be consistent in how they conduct right to work checks on all prospective employees, including British citizens;
2. ensure job selections are made on the basis of suitability for the post; and
3. ensure that no prospective job applicants are discouraged or excluded, either directly or indirectly, because of known or perceived protected characteristics.