Employers guilty of not processing job applications from non-UK, EU and European Economic Area (EEA) applicants could be held liable for indirect race discrimination.

According to law firm Wedlake Bell, employers could be culpable for failing to consider employing a person that requires a work permit.

 
A recent ruling from the Employment Appeal Tribunal (EAT) upheld a finding of indirect race discrimination against law firm Osborne Clarke because it had a policy not to process applications from candidates seeking training contracts from outside the EEA.

Osborne Clarke argued that they would not have been able to prove that they would not have been able to find a candidate from within the EEA to do the same job, a condition of employment of non-EEA individuals.
 
The tribunal ruled that due to the lack of any evidence that Osborne Clarke had tried to do this, but was unable to, Osborne Clarke was liable for indirect race discrimination on the grounds of nationality.

Richard Isham, a partner in the Employment Team at Wedlake Bell, advises that:

·        Companies should steer clear of online application systems that automatically block a non-UK, EU or EEA candidate from proceeding further with an application as this could be evidence of a discriminatory policy. Such applicants should be taken forward and be considered for interview.

·        Companies that lack online application systems should ensure that they do not have a clear and explicit policy not to consider applications from non-UK, EU and EEA applicants. Such applicants should be called for an interview if their CVs match the requirements.

·        Companies should also ensure they can provide evidence that proves that they were able to fill all positions from the UK, EU and/or EEA pool of candidates.