Recently an Employment Appeals Tribunal (EAT) found a firm of solicitors had indirectly discriminated against candidates from outside the European Economic Area (EEA) that applied for its training contracts on the grounds of race because they were screening candidates on the status of their work permit.

The firm claimed to be acting on grounds of proportionality or on the basis of a belief that an application for a work permit for a trainee would be unsuccessful on the basis of UK Border Agency ("UKBA") guidelines. However the EAT highlighted the lack of any clear evidence that the firm had ever submitted an application for a work permit for a potential trainee.

The EAT stated that initial applicant selection criteria should be based purely on merit, and work permit issues should only be considered at a later stage of the selection process. In particular, employers should not try to second-guess the UKBA or to assume that the UKBA will not grant a work permit.

Its an interesting position - organisations are under pressure to recruit as cost effectively as possible, and, in Europe, on the basis that anybody within the EEA has freedom of movement. Further, equality legislation broadly refers to 'Race' as ethnicity rather than nationality, as interpreted by the EAT.

This ruling now suggests that there are further criteria to contend with and that organisations should take a chance on candidates being able to obtain a permit and only if the candidate is unable to do this at the appropriate point (to be defined), the employer would then need to go to their second choice candidate.

Is this workable?

The firm in question are considering an appeal and, the result of which will hopefully clarify working practices. In the mean time organisations ahould consider their position on screening questions that automatically screen-out candidates on the basis of working permit status.

For more information please visit The Law Society Gazette.