Ian Duncan-Smith, the Work and Pensions Secretary, stoked the coals of controversy recently by urging employers in the UK to “give our young people a chance, and not fall back on labour from abroad”. The issue is still a hot potato four years after Gordon Brown’s ill-fated campaign in 2007 to create “British jobs for British workers”.
As an employment lawyer with a passion for and belief in promoting diversity throughout the workforce, it shocks and saddens me that our mainstream high profile politicians are allowed to make comments like this, which could be perceived as racist, even though I am sure that was not the intention behind them. In my view, it is a fine line between stating that British jobs should be preserved for British workers as Gordon Brown once did, and comments such as “these immigrants come over to our country and steal our jobs and should go back to where they come from”. Such views are unacceptable in the 21st century and were they allowed to prevail in politics and mainstream society, then I question whether I would be in the position I am in today, being myself the granddaughter of Eastern European immigrants who fled to Britain during the Second World War. London has achieved economic success because of its rich and diverse tapestry of cultures, nationalities and religions, which it welcomes and embraces. Society benefits hugely from the multi-cultural melting pot for which London is famed.
Indeed business leaders have been quick to criticise Ian Duncan-Smith’s comments and have made their views clear that many Eastern European workers in particular have a stronger work ethic than many young Britons, whom our education system has unfortunately failed, and whom our generous benefits system does not incentivise to find work.
What would it mean in practice for employers?
If employers were to follow Ian Duncan-Smith’s advice, they would be opening themselves up to potential claims for race discrimination by unsuccessful foreign applicants. They could be liable for unlimited compensatory awards and awards for injury to feelings of up to £30,000 for breaching the new Equalities Act. The only lawful way of making the changes, which Ian Duncan-Smith has been lobbying for, would be through changing the current immigration regime, in terms of limiting the jobs which migrant workers from outside the EU can do.
As an employer, it is a delicate balancing act between ensuring that you do not discriminate against a potential applicant on the grounds of race, nationality, ethnic origin or religion etc, whilst at the same time seeking to prevent illegal working.
Practical dos and don’ts for employers to minimise your potential exposure to a race discrimination claim:
- Do not only carry out identity checks on workers whom you believe are not British citizens, for example on the basis of their race or ethnicity;
- Do not assume someone from an ethnic minority is an immigrant, or that someone born abroad is not entitled to work in the UK;
- Do not make assumptions based on racial and national stereotypes or treat applicants in a certain way because of such stereotypes, for example (a) do not automatically reject all refugees; (b) do not treat employees with limited leave to remain in the UK differently in terms of the work they are given to do, in comparison with workers with unlimited leave; and (c) do not assume that overseas qualifications and experience are inferior to those gained in the UK;
- Do not ask for a high standard of English, when the job does not genuinely require this;
- Do not reject applicants who have an unfamiliar accent;
- When you make pre-recruitment checks, ensure that they are made in a non-discriminatory manner by applying them to all Applicants and at the same point in the recruitment process;
- All job selections should be on the basis of merit for the post in question;
- Only ask questions about an applicant or an employee’s immigration status, where necessary, to determine whether their status imposes limitations on the number of hours they are entitled to work each week, or on the length of time they are permitted to work within the overall period or type of leave given; and
- It is good practice to monitor the ethnicity of job applicants during the recruitment and selection process. It will help you to know whether you are reaching a wide range of potential job applicants.