The Osborne Clarke Services case (Osborne Clarke Services v Mr A Purohit - Employment Appeal Tribunal (February 2009), on which we reported in July 2009, remains the legal authority on this subject. Osborne Clarke Services had a policy of not considering any application for training contracts from individuals who required permission to work in the UK. This is because they believed that such positions could always be filled by resident workers. In common with many employers both then and now, its online application used questions to filter out those who required permission to work in the UK, preventing them from applying. The potential applicant successfully claimed race discrimination against Osborne Clarke. The Employment Appeal Tribunal (EAT) rejected the argument that the employer's policy would save time and costs and held that it's 'an unattractive way of justifying indirect discrimination'.

Has the position changed following the introduction of the sponsorship licence scheme by the UKBA? Both the Code of Practice issued under the Equality Act 2010 and the EAT  judgement  make it clear that, 'eligibility to work in the UK should be verified in the final stages of the selection process rather than at the application stage, to make sure the appointment is based on merit alone, and is not influenced by other factors.' Employers would expose themselves to claims of race discrimination by refusing to consider applications at all from non-EEA candidates. To minimise legal risk, all applications should be considered on their merits at the first instance. If a preferred applicant requires sponsorship and the employer does not have a sponsor licence and chooses not to apply for one, then the facts will have to be considered carefully in order to ascertain whether or not the decision is one that is legally justified.