Work-permit policy for trainees 'discrimination', appeal tribunal rules
Law firms that refuse to consider training contract applications from students who would need a work permit are having to review the policy following a ruling last week.
The Employment Appeal Tribunal upheld a finding of indirect race discrimination on the grounds of nationality against top-30 firm Osborne Clarke.
The Gazette has found that several large firms have a similar condition for prospective trainees from countries outside the European Economic Area (EEA).
Osborne Clarke sought to justify the policy of refusing such applications on the basis that it would be unable to sign a declaration in the work permit application that it knew of no suitable EEA worker who would be displaced as a result of employing the applicant. It also argued that Border and Immigration Agency (BIA) guidance meant that any application would in any case have been rejected.
However, the EAT said Osborne Clarke had not proved these contentions. ‘In the absence of any evidence as to dialogue with the BIA or any attempts to apply for a permit, Osborne Clarke did not begin to establish the level of evidence that is required to prove a justification on an objective basis.’
The firm could have applied for a work permit on the basis that a particular non-EEA applicant ‘displays sufficient qualities to indicate that with Osborne Clarke’s training contract he will become a better-qualified solicitor’ than a particular EEA candidate, the EAT said. It had in the past applied for work permits for qualified solicitors.
An Osborne Clarke statement said the firm is considering an appeal. ‘We believed that, given the significant volumes of UK/EEA applicants for our trainee scheme, we would be unable to satisfy the government’s strict resident worker requirements for granting work permits to foreign nationals,’ it said.
‘Osborne Clarke takes its responsibilities as an employer very seriously and we constantly strive to ensure our policies and practices do not discriminate either directly or indirectly in any area of our business. In light of the ruling, we have reassessed our position on this issue to ensure that our policy complies with the original tribunal’s ruling.’
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