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!

@prh47bridge

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.

Do you know if there is similar legislation in the EU. Or what the situation is for jobs advertised in the UK for English speakers that are only open to those with the right to work in the EU?

Also, those saying that it would be impossible to obtain sponsorship because you have to show there are no local suitable workers are incorrect.

The law changed on 1 December 2020 with a significant difference for the Skilled Worker visa compared to the old Tier 2 (General). You no longer have to demonstrate that you could not find a suitable local worker, you just need to confirm it’s a genuine vacancy. Of course there are still minimum skill and salary requirements which may make sponsorship impossible. However these are lower too now.

Well, every day is a school day! Looks like I’ll be reading all of the damn applications then.

Is there nothing MN doesn’t know?

@HermioneWeasley

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.

But they are not bonkers. They are correct, and the law says they are correct. The UK Border Agency says they are correct. So people should do as you say and risk being sued?

The advice to employers from HR experts and lawyers is clear. All candidates should be scored regardless of the right to work in the UK. If there is no candidate with the right to work in the UK, then that might justify considering an application from someone without the right to work in the UK where that person could qualify under the sponsorship system.

Yes, it's a faff. And yes, it is unlikely that you couldn't find a resident worker unless you actually already understood that finding a suitable resident worker was very unlikely. But it is a faff losing a discrimination claim. So just do as your knowledgeable HR department say...

Do you know if there is similar legislation in the EU. Or what the situation is for jobs advertised in the UK for English speakers that are only open to those with the right to work in the EU?

The Equality Act was originally underpinned by EU law. However, this is the EAT's interpretation of the Act. There is nothing specific in the Act. You would have to look for decisions in similar cases by courts within the EU. I can't immediately recall any, but that doesn't mean there haven't been any.

The territorial scope of the Equality Act is unclear. The question the courts would consider is whether there is a sufficiently close link between the employment relationship and the UK. It is therefore not entirely clear if job adverts for EU-based jobs are covered by the Equality Act.

Also, those saying that it would be impossible to obtain sponsorship because you have to show there are no local suitable workers are incorrect.

True, but that was the situation at the time of Purohit v Osborne Clarke.

Why would someone apply for a job if they don't have the right to work ?

Please note applying for a job and not having the right to work is not uncommon. 14 years ago I applied for jobs whilst on a student visa. I was not British and did not have the right to work in the UK. I got 3 job offers from companies willing to sponsor my work permit.

Getting a work permit Visa is not that difficult...it's all down to the companies strategy. Are they focused on truly hiring the best candidate for the job? If yes, then they will do what they can to get you in legally.

Why would someone apply for a job if they don't have the right to work ?

Because they hope the employer will get a visa for them.

Most companies ask for the right to work, especially the bigger ones

Unless it's a niche eg wand rare or top class phd or very hard to fill shortage role I dont see why any employer would bother to sponsor a visa