Recruitment and immigration status - legal update 1st June 2009
Legal advice received by NHS Jobs following a recent Employment Appeal Tribunal (EAT) judgment may affect the way in which employers use applicants' immigration status as part of the recruitment process.
A recent EAT case held that an employer, which had a blanket policy of refusing to consider any applications from non-EEA nationals, was in breach of race discrimination laws. The EAT decision upheld the principles and guidance set out in the Race Relations Act 1976 ('RRA') and in the 2005 Code of Practice on Racial Equality and Employment. This code is not legally binding but can be used in evidence in legal proceedings. The code states that the assessment of a candidate's right to work in the UK and immigration sponsorship should be addressed at the end of the short-listing and selection process. It should not be used to exclude them from short-listing or selection.
The impact of the case is that blanket recruitment policies that effectively screen out non-EEA candidates at an early stage will put employing organisations at risk of an indirect and direct discrimination challenge by applicants.
Following this case NHS Employers sought advice from their solicitors, who have advised that NHS organisations should, with immediate effect, cease to ask questions about the applicant's immigration status on the application form, at short-listing and/or at interview. All applications should be based on merit regardless of immigration status. For more information read the NHS Employers factsheet
The National Recruitment Scheme for NHS pre-registration trainee pharmacists (England & Wales) complies with NHS Employers recruitment guidelines. Therefore with immediate effect the following questions have been removed from the application form:
- Are you a United Kingdom (UK) or European Economic Area (EEA) National?
- If not, do you have any evidence of entitlement to enter and work permanently in the United Kingdom (UK) i.e. settled status?
Some students have already completed application forms and submitted data on their immigration status. This information has been deleted from our recruitment database and the hospitals will not receive information on any applicant's immigration status.
NHS Employers requires Hospitals to ensure that they comply with employment legislation in the light of this case and to review their recruitment processes. Further information about the EAT and its implications can be found on the NHS Employers website
FAQs are also available from here.
Please note when reading these FAQs that NHS pre-registration trainee pharmacist is on the Shortage Occupation List therefore:
- it is not necessary to advertise on Job Centre Plus
- the resident labour market test does not apply
