Decision: In the case of Sirunyan v NCO Europe Ltd, the Court of Appeal considered two points on appeal from an Armenian employee who claimed she had been directly discriminated against when her employer dismissed her for failing to demonstrate her ability to work in the UK: (1) whether she had been treated less favourably than a relevant comparator, and (2) whether her nationality was the reason for that less favourable treatment. In respect of point 1, Mrs Sirunyan argued that the Tribunal and the EAT had failed to establish the correct comparator and that the appropriate comparator in this case would be a British national who was permitted to work in the UK but who was unable to provide the requisite documentary evidence of their eligibility. However, the counter-argument to this, which the Court followed, was that the comparator here was immaterial, as NCO Europe Ltd operated a blanket policy requiring all employees to provide documentary evidence of their eligibility to work in the UK. The Court concluded that in order to succeed, Mrs Sirunyan would have to demonstrate that although NCO Europe Ltd had such a policy, it did not in fact operate the policy in this way. The evidence demonstrated, however, that NCO Europe Ltd did in fact operate a blanket policy that required all employees, regardless of nationality, to provide evidence of their eligibility and that this was specifically intended to avoid any claims of discrimination. In addition to this, NCO Europe Ltd had acted on information provided by the UK Border Agency which confirmed they would be in breach of the relevant legislation if they proceeded with her employment and would be liable for a fine. As such, the Court concluded that there was no basis in the evidence for a finding of discrimination on grounds of nationality. Mrs Sirunyan’s appeal was dismissed.

Impact: This case is a helpful reminder of the law in this area and the requirement to ensure that, under the Immigration (Restrictions on Employment) Order 2007, all employees are entitled to work in the UK. Otherwise, in the event of a breach of the Order, employers face potential penalties. This case also provides useful guidance on how to implement policies in this area to ensure that any risk of discrimination is limited. By ensuring that such policies are applied to all employees and applicants uniformly, regardless of nationality, the risk of any potential claim is significantly reduced. In addition, what appears to have been significant in this case was the employer’s ability to demonstrate how this policy applied to its workforce and applicants in practice. The evidence that the employer was able to produce on this point helped it to successfully defend the appeal, and this case shows how helpful it can be for employers to maintain clear and up-to-date records of how its policies are implemented and who they are being applied to.

Sirunyan v NCO Europe Ltd