Employers who exclude non-EEA applicants should review their recruitment procedures as a matter of urgency

Following the Employment Appeal Tribunal's (EAT) decision in Osborne Clarke Services v Purohit, employers who have recruitment restrictions based on an applicant's right to work in the UK should review their recruitment policies and procedures as a matter of urgency to minimise the risk of race discrimination claims.

Osborne Clarke had a policy of automatically rejecting job applicants for solicitor training contracts if, on the face of it, they did not have the right to work in the UK. They did this because they did not believe they could secure work permits for such applicants, as there were sufficient suitable applicants who did not require work permits. The EAT held that the rejection of Mr Purohit on this basis constituted indirect race discrimination. Osborne Clarke did not put forward enough evidence to persuade the EAT that its position was any more than mere conjecture.

Some of the implications of the case are:

• employers who currently have a policy of rejecting candidates who appear not to have the right to work in the UK, or require Tier 2 entry clearance, are, in the absence of suitable objective justification, at a risk of legal challenge;
• application forms, websites and other HR processes must be reviewed to ensure they reflect legal requirements; and
• if employers have made a conscious decision not to apply for a sponsorship licence in order to preclude the need to consider non-EEA applicants, they may need to objectively justify such a decision. This means reassessing the point in the application process at which the determination is made, and carefully considering what evidence supports that decision.