It has been clear to employers that conducting right to work checks carries a risk of unlawful indirect discrimination ever since the case of Osborne Clarke Services v Mr A Purohit (Purohit).

In May 2014, new rules on the prevention of illegal working came into force (see our previous update). In this article, we query whether or not the changes introduced in May 2014 have made it easier or harder to avoid discrimination.

Purohit and the right to work

The case of Purohit concerned the practice of filtering out candidates prior to shortlisting them where candidates did not have the right to work. This was done on the untested assumption that it would not be possible to obtain a Work Permit for them (i.e. in current terminology, to sponsor them under Tier 2).

The May 2014 changes have not affected this logic. It will still be unlawful to filter out candidates unless an employer can find a specific and proportionate justification for this practice. The Points-Based System was introduced after Purohit and can make it easier for employers to justify the practice of "filtering" in certain cases.  For example, in relation to unskilled roles where it is impossible to sponsor a migrant under the requirements of the current Immigration Rules.

Current right to work checks

Some of the features of the current right to work checks are causing employers problems, including:

Valid passports: Individuals who have valid leave to remain (either limited or indefinite) are not required to have a valid passport to lawfully be in the UK.  However, candidates from outside the European Economic Area (EEA) can no longer rely on an expired passport to prove their right to work. For example, an expired passport that shows that a non-EEA migrant has indefinite leave will not satisfy the new checks.

To obtain a statutory excuse, an employer must ask for further evidence, and a candidate’s only option would be to obtain a new passport (if they have not already obtained one) and apply to UKVI to transfer their current UK endorsement from their expired passport to a biometric residence permit (BRP). However, this can lead to confusion and carries a risk of discrimination.

If an employer has a pressing need to fill a role quickly, then it may be able to justify rejecting a person for failing to promptly provide evidence of right to work. However, great care is needed, because the justification will have to be compelling. Otherwise, the employer may face a claim of indirect race discrimination. Employers may also face unfair dismissal claims if the checks are being made in relation to staff who have been transferred under TUPE (or other current staff members) who, for example, have indefinite leave to remain but who do not possess current passports.

Family members of EEA nationals: Certain family members (e.g. spouses and civil partners but not unmarried partners) of EEA nationals who are exercising Treaty rights in the UK (e.g. studying, working, economically self-sufficient, etc.) are allowed to work in the UK without express permission from the UK Government.

Family members do, however, have the option of obtaining a Residence Card. If a family member of an EEA national shows an employer a Residence Card (or a Certificate of Application for a Residence Card), the employer can establish a statutory excuse.

However, an employee may not be able to obtain a Residence Card quickly enough. Alternatively, an employee may choose not to obtain a Residence Card or a mistake by UKVI may cause a delay. In such cases, such an employee will still have a right to work (assuming he or she is telling the truth).

The latest version of the right to work guidance explains this problem but it does not present a solution. In some cases, where an employee has a good reason for not being able to provide evidence of a Residence Card or a Certificate of Application, the employer may choose to ask for reasonable, alternative evidence to confirm the candidate's version of events.  However, this will not establish a statutory excuse.

If a candidate is rejected without good reason, he or she will face a direct or indirect discrimination claim where he or she is subsequently able to prove that he or she did possess the right to work. The matter is made worse by the fact that a Residence Card may be in an expired passport which, as explained above, carries its own discrimination risk.

Conclusion

The disheartening fact is that employers who stick rigidly to the right to work checks may face discrimination claims. A case-by-case assessment of the risks will therefore be required in many types of cases. If, however, the migrant in question does not have the right to work, and the employer has relied on an expired passport/ Residence Card, the employer will not have a statutory excuse against a civil penalty.