Is there an obligation to consider resident workforce prior to employing migrants? Julie Bann and Aleksandra Wolek report.
The Resident Labour Market Test (RLMT) was designed by the Home Office to ensure that settled workers in the UK have the opportunity to apply for positions before these are offered to migrants.
As of 1 January 2021, the Home Office introduced a new Points Based System which abolished the requirement for sponsors to carry out a RLMT. Sponsors still need to confirm that they can ensure the role is genuine, meets the relevant skills threshold and the salary requirements.
Can you specify in your job advert that the advertised role is not suitable for workers requiring sponsorship under the Skilled Worker Route?
The Skilled Worker Route, which replaced the Tier 2 (General) regime, allows employers to recruit workers from outside the UK and Ireland to fill skilled vacancies in the UK. But what happens, for example, if the urgency of your project means that you must recruit quickly and there is no time to wait for the sponsorship process to complete? Can you specify in your job advert that the advertised role is not suitable for workers requiring sponsorship?
Your position depends on whether the role satisfies the qualifications and salary requirements to qualify for sponsorship.
The advertised role does satisfy the sponsorship requirements
If the advertised position does satisfy the sponsorship requirements, then you should not openly state in the job advert that the position is not eligible for sponsorship. You could face the risk of challenge by job applicants or complaints that your recruitment practices are unlawful. Imposing requirements which have a disadvantageous impact on a specific group is likely to amount to indirect discrimination unless you can objectively justify the reasons behind such requirements. Marking your job adverts as unsuitable for workers requiring sponsorship amounts to applying a policy which has the effect of disadvantaging non-UK candidates on the grounds of nationality or citizenship. This may well constitute direct race discrimination.
The advertised role does not satisfy the sponsorship requirements
If the advertised position does not satisfy the sponsorship requirements, then you can potentially state that the advertised job is not eligible for sponsorship. However, this can still amount to indirect discrimination unless you can provide an objective justification to excluding applicants based on sponsorship criteria. Whilst it is possible to justify such practice by providing evidence to show that the advertised role would not meet the basic requirements of the points-based system, the risk of discrimination claims remains.
You should also keep in mind that the decision in Purohit v Osborne Clarke Services shows that it is not possible for an employer to prevent someone who requires visa sponsorship from applying for a role, even where the employer is able to fill the role from the resident workforce.
What can you do instead?
You may instead consider making clear in advertisements that candidates wishing to apply who would require sponsorship can determine the likelihood of obtaining a Certificate of Sponsorship for the role by assessing their circumstances against the relevant criteria. This will be helpful to potential candidates and will most likely have the desired effect of reducing the number of overseas applications from candidates that will not meet the sponsorship criteria. You may also be able to justify making it clear that candidates without an existing visa or right to work in the UK are unlikely to be suitable for the advertised post due to the short term or urgency of the project. You should consider the language that you use in your adverts to minimise the risk of unlawful discrimination – it is preferable to refer to candidates needing skilled worker sponsorship rather than “overseas” or “non-UK” candidates. Put emphasis on the positive requirements rather than the origin of the potential candidates.
Can you refuse to hire a candidate who would require sponsorship for budget and/or time related reasons?
The short answer is that you shouldn’t.
In principle, you could refuse to hire someone who would require sponsorship for budget and/or time related reasons but you would have to be able to provide a robust objective justification to any such decision. Refusing to hire someone based on costs and/or time related reasons amounts to applying a “provision, criterion or practice” (PCP) and you would have to identify a legitimate and justified aim that the applied PCP is to serve.
You would certainly risk a discrimination claim if you refused to hire someone on the basis of cost-related reasons only – the case of Heskett v Secretary of State for Justice demonstrates that a decision not to recruit someone which is based only on costs in unlikely to constitute a robust objective justification and protect you from the risk of a discrimination claim. This case seems to suggest that a “cost plus” approach is required – in order to sufficiently justify your decision not to hire someone, you would have to show that your reasons go beyond costs alone.
You should also consider possible ways of mitigating the costly burden of sponsorship. For example, some employers are implementing visa repayment policies whereby they can claw-back some of the sponsorship costs.
Unless the Home Office issues further guidance compelling employers to prioritise resident workforce over migrant workers, if you want to avoid the risk of discrimination claims, you should consider all applications equally regardless of sponsorship costs or time constraints which may mean that it is difficult to conduct and complete the sponsorship process in time.
Julie Bann is a partner and Aleksandra Wolek a solicitor at Sharpe Pritchard LLP
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