The Right to Work in the UK
“Applicants must have the right / permanent right to work in the UK”
These are very common statements in job adverts.
Companies have a legal responsibility to ensure that all employees have the right to work in the UK. To meet this requirement, some companies refuse to accept applications from anyone who does not already have this permission in place. However, because this requirement has a disproportionate impact on non-EEA citizens, it has the potential to be indirect race discrimination. This has been confirmed by case law (Osborne Clarke Services vs Purohit). As a result, these sorts of statements should now be avoided.
Insisting applicants have the permanent right to work in the UK has been explicitly rejected in government guidance: “Job applicants should not be treated less favourably if they produce acceptable documents showing a time-limited right to work in the UK” (Avoiding Unlawful Discrimination While Preventing Illegal Working, May 2014).
Some employers also insist that candidates provide evidence of their right to work at application stage. This point is addressed in section 16.67 of the Statutory Code of Practice accompanying the Equality Act 2010: “Eligibility to work in the UK should be verified in the final stages of the selection process rather than at the application stage, to make sure the appointment is based on merit alone, and is not influenced by other factors … Employers can, in some circumstances, apply for work permits and should not exclude potentially suitable candidates from the selection process.”
For some roles, gaining sponsorship may not be possible as the role might not meet the minimum criteria required. If this is the case, you may state this on the advert but you must give specific details. For example, if the vacancy doesn’t meet the minimum salary requirement, you must state that requirement and confirm what salary you are offering.
Not all employers will have registered as a potential sponsor and thus are unable to sponsor non-EEA applicants. However, a potential candidate could argue that securing such registration is not an unreasonable burden when balanced against their right not to suffer undue impact due to their nationality and that a company should be prepared to secure one if necessary. Stating that you do not have a sponsorship licence as a means to discourage non-EEA applicants could potentially expose you to claims of indirect racial discrimination. For this reason, we do not normally allow this statement on adverts.
Special Exemptions for non-EEA students graduating from UK Universities
Recent changes in sponsorship rules have increased concern amongst employers regarding taking on international (non-EEA) students. However, while restrictions on most sponsorship have tightened, there are important exemptions for non-EEA students studying at UK universities.
If you appoint a student that has studied in the UK on a Tier 4 visa and who is now switching to a Tier 2 visa, the following exemptions from the new rules apply:
- Although the minimum salary for most Tier 2 sponsorship has been raised significantly (£30,000 per annum for Tier 2 (General)), the minimum salary for non-experienced workers remains (at time of writing) at £20,800 per annum.
- You are not limited on the amount of sponsorship certificates you can request;
- You do not have to pay the new Immigration Skills Charge;
- You do not have to carry out the Resident Labour Market Test. (You should note that even when you do have to apply the RLMT, this is not a valid reason for refusing applications. If the conditions for the RLMT are met, and no suitable settled worker is appointable, you may be able to employ a migrant worker.)
Because of the complexities of this issue, any statements placed on adverts concerning this issue should be very carefully considered.