Employer responsibilities and avoiding discrimination Q&A

SAVE ITEM
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26 / 4 / 2016 Midday

This section answers questions about your responsibilities as a sponsor of migrant workers and provides guidance about avoiding discrimination during the recruitment process. 

Acronym glossary:

EEA - Economic European Area

EU - European Union

NMC - Nursing and Midwifery Council

HCPC - Health and Care Professions Council

IELTS - International English Language Testing System

UKVI - UK Visas and Immigration

RLMT - Resident Labour Market Test

CoS - Certificate of Sponsorship

GMC - General Medical Council

SOC - Shortage Occupation 

 

 

What are our responsibilities as a sponsor, and are there risks if we don’t comply with UKVI requirements?

In one of the first cases to reach court, an employer within the health and social care sector has had their Tier 2 sponsor licence revoked. This serves as a reminder that sponsors must adhere to the rules as specified by UKVI or they risk losing their status as an approved sponsor. In this particular case, failings included:

  • not retaining resident labour market test evidence
  • not retaining copies of qualifications and interview records 
  • not providing evidence of right to work for one employee
  • a failure to record visa expiry date for one employee
  • some migrant workers having the incorrect place of work recorded on their CoS.  

Employers are encouraged to ensure compliance with UKVI sponsor policy and guidance

My organisation asks candidates about the right to work and about their immigration status prior to short-listing. If it is apparent that we have enough UK/EEA candidates, we do not short list the non-EEA candidates because we do not feel we can meet the resident labour market test. Does this practice pose any risks to our organisation?

Yes. If the question is asked as a means of filtering out non-EEA applicants or as a blanket policy to exclude non-EEA applicants from the recruitment and short listing process, then this recruitment practice increases the risk of an indirect discrimination claim. It is also possible for a direct discrimination claim to be successful in these circumstances. We would recommend, in adverts, referring to ‘candidates needing Tier 2 sponsorship’ rather than ‘non EEA candidates’ to minimise the risk of unlawful discrimination.

What are the risks to my organisation if I continue to exclude non-EEA candidates from shortlists based on their immigration status?

You will face the risk of a challenge by individual job applicants or complaints that your recruitment practices are unlawful. The imposition of requirements which have a more disadvantageous impact on a particular group, will amount to indirect discrimination, unless your organisation can objectively justify the reasons behind the requirement. Asking this question at an early stage and having a blanket policy which excludes individuals who require sponsorship will disadvantage non-EEA candidates on the grounds of their nationality or citizenship, which could also amount to direct race discrimination.

What if a resident EEA worker applies for the job and does not have the necessary skills, qualifications or experience for the job, can I refuse to employ them and employ a non-EEA applicant instead?

Only if you have specifically requested these qualifications, experience or skills in the job advertisement and person specification and if the non-EEA candidate fulfils the other Tier 2 specific conditions under the points based immigration system. You may need to obtain specific immigration advice on whether non-EEA candidates are likely to get immigration clearance and we suggest the UKVI employer helpline is used in these circumstances.

The post which I am about to advertise will never attract Tier 2 sponsorship as the post does not satisfy the qualifications or salary requirement to qualify for Tier 2 sponsorship. Can I include a statement in my advert which makes it clear that as the post will not qualify for sponsorship so non-EEA candidates will not be considered?

Potentially yes, but this is still indirect discrimination and excluding applicants based on sponsorship criteria is not the safest practice and still carries an element of risk that will require objective justification. Employers making such statements in adverts will need to be able to justify this assertion with evidence that the skill level and salary for the post would not meet the basic requirements of the points-based system. You might also consider making clear in advertisements that overseas candidates wishing to apply who would require sponsorship can determine the likelihood of obtaining a CoS for the post by assessing their circumstances against criteria specified on the gov.uk website.

How can we manage the expectations of candidates in the recruitment process? It seems unfair that non-EEA candidates could invest their time and incur costs in attending interviews when in reality they cannot be appointed to the post as we know that if we have suitably qualified EEA candidates apply for the posts, we will not meet the RLMT and cannot appoint non-EEA candidates?

There are good reasons for managing candidates’ expectations and potential outcomes of the recruitment process. There is nothing to prevent employers from notifying all short listed candidates in the invitation to interview letter, about the numbers of individuals short-listed for the post. The letter inviting candidates to interview can include a statement reminding candidates about the RLMT and the fact that this may mean non-EEA candidates will not be appointed if the organisation has applications from suitably qualified, experienced and available settled EEA workers. Similarly, if employers wish to clarify the implementation of immigration policy to meet their duties as a licensed sponsor, they can approach the UKVI for information and guidance. It is advisable to keep a record of the conversation and outcome.

Can I include a statement in our advert about recruiting non-EEA applicants and the impact of the RLMT?

Yes. We recommend the following statement is used to ensure that applicants and recruiting managers are aware that UK legislation will make it difficult for non-EEA applicants to secure NHS employment in positions which are not on the shortage occupations list and where there are suitably qualified, skilled and experienced UK and EEA candidates who have applied for the post.

"Applications from job seekers who require Tier 2 sponsorship to work in the UK are welcome and will be considered alongside all other applications. However, non-EEA candidates may not be appointed to a post if a suitably qualified, experienced and skilled EU/EEA candidate is available to take up the post as the employing body is unlikely, in these circumstances, to satisfy the resident labour market test. UK Visas and Immigration (UKVI) requires employers to complete this test to show that no suitably qualified EEA or EU worker can fill the post. For further information please visit the UKVI website."

Our trust is currently undergoing a re-organisation and some staff will be moved to alternative jobs and locations. How will this affect their current CoS? What processes and restrictions would apply?

This is a complex issue and is explained in UKVI guidance for sponsors which includes the specific sponsorship duties and timescales that should be followed. The criteria that applies is dependent on various factors such as:

  • changes affecting the employer
  • any change to salary levels
  • SOC
  • TUPE requirements due mergers, takeovers and de-mergers.

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