Background
In February 2009, the Employment Appeal Tribunal, (EAT) issued a judgment in the case of Osborne Clarke Services v Purohit. The EAT held that the employer, which had a policy of refusing to consider any applications from non-EEA nationals for trainee solicitor roles, was in breach of race discrimination laws.
Advice for employers
Following this case NHS Employers sought advice from our solicitors, Capsticks, who have advised that NHS organisations who wish to limit the risk of a successful challenge should, with immediate effect, cease to use the following NHS Jobs features to ‘filter’ or ‘exclude’ non-EEA applicants from consideration for short-listing and/or interview:
- do not use the pre-application question ‘Do you have the right, under immigration rules, to live and work in the UK without restriction?’
- do not use any of the filter questions connected with immigration:
- ‘Are you a United Kingdom (UK), European Community (EC) or European Economic Area (EEA) National?’
- ‘Please select the category that relates to your current immigration status. This status will be subject to checking before interview.’
- ‘Country’
The safest approach is to consider all applications based on merit. Our analysis of the use of these features in NHS Jobs indicates that this will generate a less than one per cent increase in overall applications.
Additional information and advice for employers on how to limit the risk of a similar successful challenge, including FAQs and a legal briefing is available from the NHS Jobs web pages.
For further information, please contact the NHS Jobs team via e-mail nhsjobs@nhsemployers.org