Can I refuse to interview if candidate doesn’t have right to work?

[DazzlePaintedBattlePants]

Recruiting for an entry level graduate role. Salary is well under £30K. HR is insisting that I have to score all candidates including those who do not have the right to work in the U.K. (this is asked as part of the application). I think that this is a nonsense - we have no hope of getting these people a visa if we decide that they are the best candidate, so why waste my time wading through about 12 applications? HR are saying that we must do this otherwise we risk being accused of indirect discrimination. Any words of wisdom before I take it further with them? Thanks!

But everybody is asked to confirm they have the right to work? so how is it discrimination!?

Even people called Claire Smith from Chalfont st giles have to tick the box confirming they have the right to work in the country.

Most of the jobs I've seen advertised have had right to work in the UK as an essential prerequisite for the job, so anybody who doesn't meet the requirements therefore doesn't meet the necessary criteria to progress to interview.

When you score, surely the scoring would disqualify those who don't have right to work?

HR are bonkers.

Those weren't words of wisdom. I'm just surprised by the lack of common sense.

It does seem like a huge waste of time to look at those applications. Pointless.

As suggested above can't you assess the essential criteria first? If people don't meet the essential then you don't need to continue to assess?

Is there an officially scoring sheet? It's a pain but at least the scoring will rule them out ahead of interview.

Maybe suggest that HR amend the form so that the first column when scoring is "has the right to work in the UK" and the score is either +1 (yes) or -6 (if six is the number of other categories scored on - if not change this to whatever would bring the candidate to a maximum score of zero).

Well, you can express your view it's pointless, but HR will make their decision and you have to go with it.

I've worked in recruitment for years (including grads) you do not have to screen an application that doesn't have the right to work in the UK.

If you set a min criteria such as right to work or degree result you can screen out based on those

HR are being silly. There is no point interviewing people that don’t have the right to work, waste of your time and theirs.

HR are presumably aware of Osborne Clarke v Purohit, and are keen to avoid a similar finding of race discrimination. Do as they have said - even if you don't agree with the law, hopefully you value your own job enough not to deliberately ignore an instruction and get your employer sued.

The Government issued Right to Work checks and guidance for employers on 17 December 2020. I suggest you take the relevant sections to HR. If you employ someone who doesn’t have a right to work there are consequences. I don’t see the point of interviewing unless these people are close to getting a right to working here.

Your HR team are bonkers. If someone has confirmed they do not have the right to work in the UK, it is perfectly justifiable not to consider their application.

@GolfForBrains

HR are presumably aware of Osborne Clarke v Purohit, and are keen to avoid a similar finding of race discrimination. Do as they have said - even if you don't agree with the law, hopefully you value your own job enough not to deliberately ignore an instruction and get your employer sued.

It has nothing to do with race discrimination, it is about right to work. Employers are entitled to not employ or to terminate staff that are not legally allowed to work e.g. a driver that loses their licence can be terminated and a person whose visa status lapses can be fairly terminated. As such of course they do not need to interview anyone that does not have the right to work.

Yes, but rejecting them by applying a PCP which disadvantages non UK nationals, who are proportionately less likely to have right to work, without for example considering sponsorship, is likely to be unjustified indirect race discrimination, as in the case I just mentioned.

I suspect they are indeed applying the case mentioned upthread and that makes sense. The HR person mentioned indirect discrimination and I asked which protected category we would be discriminating against. Furthermore, in this case discrimination against any protected category would surely be fine as it’s a proportionate means of achieving a legitimate aim, that is, ensuring a successful candidate has the right to work in the U.K., as we’d be breaking the law to employ them!

I’ve just read the appeal for the above case. That’s completely bonkers. Apparently it’s quite clear that we are supposed to consider applicants irregardless of their ability to work in the U.K. and then basically move heaven and earth to secure their right to work. No matter that in this case it’s a) extremely unlikely that we’d secure a visa and b) certainly not on the timescale we need. WTaF???

Perhaps it’s different for a training contract, as opposed to a “bog standard “ job.

Right to work in the UK is not a protected characteristic and if you did try to apply for a visa you would need to demonstrate that you could not find anyone with the required skillset in the UK market. HR are being mad and making a lot more work.

@TheDogsMother

Right to work in the UK is not a protected characteristic and if you did try to apply for a visa you would need to demonstrate that you could not find anyone with the required skillset in the UK market. HR are being mad and making a lot more work.

Indeed. It depends what you're recruiting for doesn't it - yes if you're trying to get some top eye surgeon guy (or girl) who has expertise in some mega specific technique then yes you'd stand a pretty good chance of getting him/her a visa if you offered the job. Exceptional talent and all that.

For your bog standard office worker? No chance of a visa, total waste of everyone's time going through the process, including the applicant! Every single job I've applied for has a tick box asking you to confirm right to live and work in the UK, and it won't even let you submit unless the box is ticked.

Just get HR to go through the Right to Work checks. Follow the guidance and don’t employ if they don’t have the right. It’s fairly straightforward.

Might be worth pointing out to them that your company can be fined up to £20,000 per illegal employee, and if they think this stuff doesn't get investigated they're wrong.

It has nothing to do with race discrimination, it is about right to work

I'm afraid the Employment Appeals Tribunal disagrees with you. Refusing to consider people who do not have the right to work is classed as indirect race discrimination. See Purohit v Osborne Clarke Services. In this case, Osborne Clarke refused to accept applications from people who did not have the right to work in the UK. The EAT took the view that Osborne Clarke should have looked at these candidates and considered sponsoring them.

It could be argued that this decision is a nonsense. Osborne Clarke had applications from people who did have the right to work in the UK and could not, therefore, sponsor an applicant. The EAT nonetheless held that such applicants must be allowed to apply and their applications should be considered properly.

Immigration lawyer here. We had this come up all the time and advised that you should treat all candidates the same and only then not hire the person when it became clear once the decision has been made that the person does not have the right to work. To treat them otherwise could be considered discrimination based on nationality.

Where I work we only ask for right to work after job offer stage so this stage of potential discrimination is eliminated.