The Employment Appeal Tribunal (EAT) has recently found in the case of Osborne Clarke Services v Purohit [2009] UKEAT/0305/08; [2009] IRLR 341 that Osborne Clarke Solicitors indirectly discriminated against non-EEA nationals on the ground of their nationality by having a blanket policy of not accepting applications for training contracts from non-EEA nationals who required work permits to work in the UK.

The claimant was an Indian national whose application for a training contract was rejected on the ground of his immigration status. He claimed that this was indirect race discrimination as the policy adversely affected a greater proportion of non-EEA nationals than EEA nationals. He also argued that the policy could not be justified.

The firm of solicitors attempted to rely on the relevant guidance from the UK Border Agency at the time that provided that employers would need to be able to show why they could not fill the post with an EEA national, who with extra training could do the job before they could offer it to a non-EEA national. They argued that because the post was a training post, it was always possible to fill the positions with EEA nationals who could be trained to the appropriate level. The EAT rejected the argument and found that there had been no discussion between the solicitors and the UK Border Agency. They made it clear that an employer should always base its selection process on merit, and immigration status issues should only come into consideration at the last stages of selection. The EAT did not overturn the tribunal’s rejection of the argument that cost could be an acceptable justification for having such a policy in place.

In light of this decision, NHS employers may want to reconsider their recruitment policies to ensure that issues relating to immigration status are not used as a way of filtering applications, as in doing so, they could also be liable for indirect race discrimination, and it appears that cost will not be a sufficient justification for having such a policy in place.

In light of this decision, NHS employers may want to reconsider their recruitment policies to ensure that issues relating to immigration status are not used as a way of filtering applications, as in doing so, they could also be liable for indirect race discrimination, and it appears that cost will not be a sufficient justification for having such a policy in place.