Far from black and white

first_imgRelated posts:No related photos. Far from black and whiteOn 1 Sep 2001 in Personnel Today The issue of race has never been higher on the politicalagenda. For employers, too, it presents more challenges than ever before, as RachelDineley reportsIssues of racism and race discrimination have been much in the news lately.The debate as to the causes of racial tension and how it may be combated hasbeen raging since the murder of the black teenager Stephen Lawrence, butdespite much national introspection, the answers seem as distant as ever. As a result of the inquiry into Lawrence’s death, the Race Relations(Amendment) Act 2000 was introduced. Its purpose was to outlaw racediscrimination in the performance of functions by public authorities not coveredby the Race Relations Act 1976. A month later, the Home Office producedguidance on recruitment in the context of the Asylum and Immigration Act 1996. While the new act is the latest UK statute to grapple with issues of racediscrimination, it shares the stage with two new European directives, the RaceDirective and the Framework Directive, which will require the UK government toput further legislation in place by 2003. This legislation is likely to entailfurther amendments to the RRA. In the meantime, employers may be well advisedto review their policies and procedures, beginning with those relating torecruitment, to ensure that they comply with legal requirements and goodpractice. Race Relations (Amendment) Act The new act came into force on 2 April 2001. It extends the ambit of the RRAin a number of key respects, in particular in the discharge of public functionsby public authorities. The RRA was designed to tackle discrimination on racialgrounds in the field of employment, the provision of goods, facilities andservices, training, education, housing and public appointments but”services” were given a narrow interpretation by the courts. The new Act seeks to remedy the shortcomings of the RRA in this respect and,in so doing, creates new challenges for employers in the public sector. The new act imposes both general and specific duties on public authoritieswhich, for this purpose, are defined as “any body certain of whosefunctions are of a public nature” (the approach taken in the Human RightsAct 1998). The definition of “public authority” is sufficiently broad toembrace those bodies which are privately owned but have responsibility fordischarging functions of a public nature, such as the running of a prison. The new act, which introduces a new section 71 into the RRA, imposes ageneral duty on authorities when carrying out their public functions to”have due regard to the need (a) to eliminate unlawful race discriminationand (b) to promote equality of opportunity and good relations between personsof different racial groups”. Public authorities are, in effect, requiredto undertake a balancing exercise when determining how to discharge theirpublic functions and to give appropriate weight to promoting race equality. Inaddition, the Home Secretary may, by order, impose “such duties as heconsiders appropriate for the purposes of ensuring the better performance”of the general duty to promote race equality. The Commission for Racial Equality has been given extensive powers under thenew act including powers to issue codes of practice after appropriateconsultation. Once in force, a code of practice will be admissible in court inrespect of any claim brought under the act or an order imposed under it topromote race equality. This is comparable to the CRE’s code of practice givingguidance on employment practices, which may be taken into account by anyemployment tribunal considering a complaint of race discrimination. The aim of the new Act is to ensure that proper account is taken by publicauthorities in both policy development and service delivery. Their recruitmentpractices will, no doubt, be integral to fulfilling their general and specificduties imposed by the new act. Recruitment without prejudice The CRE’s code of practice for the Elimination of Racial Discrimination andthe Promotion of Equality of Opportunity in Employment was published in 1983.Since then, workplace practices have developed and changed, not least as aresult of the development of technology and the demands placed on employers byan ever increasing body of law regulating employment practices. In addition to the CRE’s code of practice, employers should now take accountof a Home Office code of practice, in force since 2 May 2001, relating to theAsylum and Immigration Act. The CRE’s code of practice reminds employers that, when advertising jobvacancies, it is unlawful for employers to publish an advertisement whichindicates, or could reasonably be understood to indicate, an intention todiscriminate against applicants from a particular racial group (section 29 ofthe RRA). Employers should also avoid requiring information such as length ofresidence in the UK, and where a particular qualification is required, itshould make clear that a fully comparable qualification obtained overseas is asacceptable as a UK qualification. Under section 4(1)(a) of the RRA it is unlawful to discriminate on racialgrounds in the arrangements an employer makes for the purpose of determiningwho should be offered employment. Accordingly employers must not userecruitment methods which preclude or disproportionately reduce the numbers ofapplicants of a particular racial group, and which cannot be shown to bejustifiable. Against that background, what are the implications for employers whoserecruitment practices include advertising vacancies and processing jobapplications received via the Internet? Employers’ websites may be accessed via the Internet by prospective jobapplicants from around the world. They may be inundated with applications fromapplicants who do not enjoy any right to work in the UK. Section 8 of the Actmakes it unlawful for an employer to employ persons who are not entitled towork here. How is an employer to comply with its obligations under the 1996 Act?The Home Office’s code of practice aims to provide employers with guidance.As with the CRE code of practice, while a failure to observe the code will notof itself constitute a breach of the law, such a failure will be admissible inevidence in any employment tribunal proceedings and the tribunal may takeaccount of the code, if it is relevant. The Home Office code advises that employers should ensure that noprospective job applicants are discouraged or excluded either directly orindirectly because of their appearance or accent. Assumptions should not bemade about a person’s right to work or immigration status on the basis of theircolour, race, nationality or ethnic or national origin or the length of timethey have been in the UK. All job selections should be on the basis ofsuitability for the post. The code reminds employers of the need to ascertain an applicant’s right towork, which may be established by the production of any one of a number ofdocuments. It advises that: “There is no need to ask for an applicant’simmigration status, apart from asking if he or she needs a work permit. Suchenquiries could mislead you into taking decisions which might constituteunlawful racial discrimination.” The best way to ensure you do not discriminate is to treat all applicants inthe same way at each stage of the recruitment process, for example, whensupplying an application form, you could include a reminder that the successfulapplicant will be asked to produce one of a list of specified documents – andattach the list. The code goes on to remind employers that applicants may be asked to provideone of the specified documents at any stage before they commence work.”Depending on your recruitment processes, you may find it most convenientto request the document from all those called to a first interview, or justfrom those called to a second interview, or only from the person chosen to fillthe vacancy. It is perfectly satisfactory to ask for a document only from theperson chosen to fill the vacancy if that is most administrativelyconvenient.” This last suggestion seems unlikely to reflect the approach employers willwish to take in practice. What employer would wish to go to the time, troubleand expense of a comprehensive recruitment process, leading to their making ajob offer, only to discover that the successful candidate has no right to workhere? In general, employers will only be granted a work permit in respect of a jobcandidate where it can be demonstrated that the employer has advertised the jobin the most appropriate medium that provides the best way of reaching suitablequalified “resident workers” ie, workers who are nationals ofcountries in the European Economic Area (EEA) or people who have settled statusin the UK within the meaning of the Immigration Act 1971. Ordinarily, work permits will not be granted where the employer (who mustapply for the work permit, rather than the job applicant) fails to demonstratethat there are no suitably qualified “resident workers” to whom thejob might be offered. The employer may apply for and be granted a work permit,but this is likely to incur additional trouble and expense, to say nothing ofthe delay in the commencement of the candidate’s employment. If the work permitis refused, the employer may have lost the opportunity to offer the post in questionto other candidates on its shortlist who may, in the meantime, have securedjobs elsewhere. If an employer readily expects to be able to satisfy its recruitmentrequirements from job applicants who are “resident workers”, will itbe unlawfully discriminating against other applicants if it declines to processapplications from applicants for whom it would need to seek a work permit? Itmay be argued that it is indirectly discriminatory for an employer to impose arequirement or condition that job applicants must have an existing entitlementto work in the UK. Plainly, while such a requirement would not be designed toexclude applicants on racial grounds, the practical effect would be to excludethe majority of prospective applicants of a wide range of racial groupsresident outside the EEA. Whether an employer would be objectively justified inimposing such a requirement or condition must depend upon the particular factsin each case, including the nature of the posts for which the employer isrecruiting, the number of applications received and the likelihood of theemployer seeking and being granted a work permit in respect of any particularvacancy. The reality may be that job applicants who seek to apply for jobs via theInternet are unlikely to institute proceedings against an employer here, whenthey are resident abroad. The practical difficulties of pursuing such a claimare self evident. Nonetheless, the risk must exist. Looking ahead The pitfalls for employers on recruitment are likely to increase whenlegislation is introduced to give effect to the Race Directive and FrameworkDirective. The former must be implemented by 19 June 2003. It makes it unlawfulto discriminate on race or ethnic grounds, including discrimination in accessto employment and self-employment and access to occupations. Indirectdiscrimination is defined as occurring where an apparently neutral provision,criterion or practice would put a person at a particular disadvantage, whencompared with others, unless objectively justified by a legitimate aim and themeans of achieving that aim can be shown to be necessary and appropriate. Thiscontrasts with the narrower definition under the RRA. The Framework Directive outlaws discrimination, among other things, ongrounds of age, religion or sexual orientation. Protection againstdiscrimination on grounds of sexual orientation and religion must be introducedby 2 December 2003. The requirements in respect of age and disabilitydiscrimination must be complied with by December 2006. Again, protection isafforded in relation to employment, self-employment and occupations. The Government has now implemented the Burden of Proof directive and newregulations will come into force on 12 October 2001, to shift the burden ofproof in sex discrimination cases onto the employer (see October’s EmployersLaw for more details). The definition of indirect sex discrimination will beamended to substitute the concept of an unjustifiable “requirement orcondition” with an unjustifiable “provision, criterion orpractice” which is indirectly discriminatory. No doubt, in due course, we will see case law develop, as this newdefinition is tried and tested before the employment tribunals and theEmployment Appeals Tribunal. Employers will need to monitor these developments,and adapt their policies and procedures, including their recruitment practices,to cater for the changes in UK discrimination law in the months and yearsahead. Rachel Dineley is a partner in national law firm Beachcroft Wansbroughs Latest advice from the CREIn response to our enquiries, the Commission had the following advice forInternet recruiters.– It is suggested employers include a statement on websites such as,”We are unable to apply for work permits until all EEA options have beeneliminated”, or words to that effect.– Employers should state on websites: “It is unlawful to employ aperson aged 16 or over who does not have permission to live and work in the UK.We will not be able to engage you if you cannot produce, when requested, one ofthe following documents…” and list the documents.– It is recommended that applicants be asked to provide specified documentsonly at shortlist stage or when offering the post. Comments are closed. Previous Article Next Articlelast_img

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