Discrimination Diaries- Discrimination Association

Nov 22, 2019

Our discrimination expert, Senior Solicitor Katie Harris, answers your questions on difficult discrimination issues in employment. This month, an Indian national seeks help with concerns about a recent job application.

Names and circumstances have been changed to protect the identities of those involved. 

Dear Katie, 

My name is Ajit and I was born in India and have Indian Citizenship. I moved to the United Kingdom when I was 21 to study for a marketing degree. I am now 25 years old and I am applying for post-graduate positions in the City. I am currently holding a Tier 4 Visa, which entitles me to work in the UK on a part time basis. I hope to eventually settle in the UK, provided that I land a suitable job. 

I recently applied for a job with a FTSE 250 company as a Marketing & Sales Director. I was invited to a group interview. There were five other applicants. As part of the interview process, I was asked about the current situation with my Visa. I explained my intentions to them. We were told that, as part of the interview process, there would be two finalists going forward for a final interview. Following the group interview, I exchanged numbers with two other women who applied for the role. Last week, we went for a coffee to discuss how our job searches were going and they told me they had both been shortlisted for the final interview at the Company. 

The women were around the same age as me, and held the same qualifications as I did. They had a lot less experience than me. I feel that I have not been chosen for the job because of my Race and the issues surrounding my visa and immigration status. This has put me at a substantial disadvantage in the interview process and it has also knocked my confidence going forward to apply for other roles, because I am worried employers are not interested in looking at me.

Do I have a case against the Company for discriminating against me on the basis that I have a visa and I am not a British Citizen?  

My Advice

I am sorry to hear that you are experiencing trouble finding a permanent role following your studies. In short, the Equality Act 2010 makes it unlawful for a Company to discriminate against job seekers because of their race – this includes ethnic or national origin.  You are, therefore, protected under this legislation if the Company have refused to shortlist you on the basis that you are an Indian national. Your national origin is a protected characteristic and the Company’s actions may be a form of direct discrimination or indirect discrimination.Direct discrimination is the act of treating someone “less favourably” than another, because of their protected characteristic (in your case, your race or national origin).  So, in this circumstance, if the reason you were not offered the job was because you are Indian, this would be direct discrimination on the grounds of your race or national origin. 

If the Company are imposing a blanket recruitment policy, in that they are excluding applicants working under a visa from the recruitment and short-listing process, then this recruitment practice could be an example of indirect discrimination. In other words, the Company has applied a policy equally to all job applicants, but it places people of your race and national origin at a particular disadvantage.  

The Company may be able to defend a claim of indirect discrimination if it can justify its policy.  In order to sponsor an employee under the Tier 2 Visa system, companies must be able to pass the ‘Resident Labour Market Test’ (‘RLMT’).  This means they must be able to demonstrate that there are no suitably qualified settled workers available to fill the vacancy.  Not meeting the RLMT, and therefore not being able to acquire a Tier 2 Visa, could be sufficient justification.  However, the Company is unlikely to be able to rely on this as justification unless it has undertaken a full and proper assessment of job applicants through an interview process.  A blanket exclusion of all applicants requiring a Visa at an early stage in the process is unlikely to be justifiable.

Best Practice

An Employment Tribunal process can be expensive and time consuming. Despite you having a gut feeling that you have not been accepted for this job because you are Indian, and working on a temporary visa, it is still uncertain what other qualities or skills other candidates may have held, and for what reasons they were shortlisted over you. For this reason, the outcome of a claim is uncertain and it is difficult for me to advise you on the strength of any claim. 

Therefore, the most cost efficient course of action to take initially is an informal approach. This would involve requesting feedback from the Employer and asking for the reason why you were not shortlisted for the job. Generally, most employers are happy to provide this to any candidates. You can then decide whether their explanation is acceptable or whether you require more information.

Compiling Evidence

If you are considering taking the claim further to an Employment Tribunal, you would also need to consider what evidence you have to substantiate your claim of race discrimination. The Company is likely to hold a lot of documents and information that you will not have access to – such as a racial breakdown of all the applicants who applied for the role in question. The best way to get hold of this information is by writing to the Company and asking for it. You should keep a record of all correspondence to the Company. If the Employer won’t give you the information you have asked for, it may be inferred that they did discriminate against you – and a Tribunal may be likely to think that way as well. If the Company refuse, you could check to whether the Company publishes any equality information online, on their website. 

You could also send the Company a letter compiling a list of questions surrounding the reasons why they chose a specific recruit. Again, you should retain a copy of any correspondence which is sent to them. You should give the company a reasonable deadline to respond to the letter (21 days is generally acceptable). A Company is not legally obliged to respond to a request for information, but it would be within their interest to – to prevent you from needing to take this any further.  Their failure to respond may also be used as evidence against them in a tribunal hearing.

Alternative ways to obtain information, and potential evidence, is by applying pressure on the Company to respond to you by: 

• Making a Data Subject Access request under s45 of the Data Protection Act 2018. This will give you all the information the Company holds on you including, possibly, any notes taken by the interviews on your race and Visa requirements

• Making a Freedom of Information Request, if the Company is a public body. This will give you information such as how many people of a racial group applied for the role and/or how many Canadian people have been hired over the last two years. 

If you are not satisfied with the feedback, you can make a further complain to the company’s HR department. You should put your complaint in writing and list the reasons why you think the Company has discriminated against you and what you propose they do about it. This may include requesting an apology, compensation or offering you a 2nd interview. The Company are not legally required to respond to outside complaints – so, do not be surprised if you do not receive a response. 

If you do not receive a response, and you are still not satisfied with how you have been treated, you could issue an employment tribunal claim.

What can you receive if you issue an Employment Tribunal claim? As a job seeker, you may have entitlement to compensation or you may be able to negotiate with the Employer to give you a job. However, it is important to note, a tribunal does not have the power to order a Company to give you a job. 

A Tribunal can order the Company to pay you compensation for: 

• Any money you have lost because of the discrimination – this is your Financial Loss

• Any hurt or distress you’ve suffered as a result of the discrimination – this is an Injury to Feelings award

• A personal Injury award, if you have suffered clinical depression as result of the discrimination.

All discrimination claims are very fact specific and this note is intended as a general guidance only. If you have any discrimination issues, we would recommend seeking legal advice.

For further information, or to discuss the issues raised by this update, please contact Herrington Carmichael’s Employment Department on 0118 977 4045 or employment@herrington-carmichael.com

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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