June 23, 2021

Be aware of racial bias when employing staff

first_img Comments are closed. Related posts:No related photos. Acode of practice on racial discrimination seeks to clarify rules on theimmigration status of potential employeesEmployers need to tread carefully when considering the immigration status ofjob applicants and new recruits Under the Asylum and Immigration Act 1996, it is a criminal offence toemploy a person who does not have permission to work in the UK. Employers havea defence to such a criminal charge, however, if they make appropriate checksbefore taking on new staff. This involves seeing and copying one or more of arange of specified documents – a valid work permit or a documented NationalInsurance number, for example. Employers also need to take on board the risk of discriminating against jobapplicants and new recruits on racial grounds when making the necessary checks,particularly since the Race Relations Act 1976 specifically coversdiscrimination on grounds of a person’s nationality or national origins. Thepotential for race discrimination claims to arise in the context of immigrationis illustrated by the Employment Appeal Tribunal’s recent decision in IceHockey Super League v Henry, June 2001, IDS Brief 686, . Shane Henry, a Canadian professional ice hockey player, was engaged to playfor the Sheffield Steelers in the UK’s Super League. He had the right to workin the UK without the need for a work permit on the basis of his nationalorigins in the European Union. His contract provided for a four-week probation period, during which hisemployment could be terminated. After arriving in the UK, concerns wereexpressed about his fitness and he was given notice of termination. Henry lodged a claim of race discrimination. In essence, he argued playerslike himself, with national origins in the EU, had been treated less favourablythan players with national origins outside the EU whose contracts did notinclude a probationary clause. An employment tribunal upheld the complaint. It found that the inclusion ofa probationary clause in a player’s contract depended on whether or not herequired a work permit. Since the need for a work permit was based on nationalorigins, it followed that the inclusion of a probationary period in Henry’scontract amounted to race discrimination. The EAT, however, allowed the Super League’s appeal, relying on the Court ofAppeal’s decision in Dhatt v McDonald’s Hamburgers, March1991, IRLR 130. Inthat case, it was held that McDonald’s did not discriminate on racial groundsagainst an Indian national by asking him to show evidence of his right to workin the UK, even though EU nationals were not required to produce such evidence.The correct comparison under the RRA, the Court of Appeal said, was betweenIndian nationals on the one hand and other non-British, non-EU persons ofwhatever nationality on the other. Those two groups were treated alike byMcDonald’s in terms of having to prove their right to work, so there was nodiscrimination. Applying analogous reasoning, the EAT ruled Henry had to compare himselfwith other ice hockey players of whatever racial origin who did not require awork permit to work in the UK. Since all those players had probationary clausesin their contracts, Henry had not suffered any less favourable treatment underthe RRA. Although the employer ultimately escaped liability in Henry’s case, itprovides a salutary reminder of the need to be aware of race discriminationissues when dealing with matters concerning the immigration status of new staffand potential recruits. Last month the Home Secretary issued a statutory Code of Practice on how toavoid race discrimination while ensuring that a new member of staff has theright to work in the UK in line with the Asylum and Immigration Act. The coderecommends that all job applicants should, as far as possible, be treated inthe same way throughout the recruitment process. Employers who behave otherwise– for example, by carrying out checks only on applicants who appear or sound”foreign” – are skating on thin ice. Richard Lister is a lawyer in the employment department at Lewis Silkin Be aware of racial bias when employing staffOn 12 Jun 2001 in Personnel Today Previous Article Next Articlelast_img

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