A Guide for UK Employers on Immigration Discrimination in the Workplace banner


A Guide for UK Employers on Immigration Discrimination in the Workplace

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If you employ overseas workers you need to know about the law on immigration discrimination in the workplace. If you don’t follow the latest guidance, you could face claims from migrant workers or British workers.

At OTS Solicitors our Immigration Solicitors and Employment Lawyers work together to help UK business owners understand the law on immigration discrimination in the workplace.

If you have questions about your employment of sponsored or unsponsored overseas workers then our Employment Lawyers and Immigration Solicitors are here to answer your questions.

UK Online and London-Based Immigration Solicitors, Sponsorship Licence and Employment Lawyers

For UK employment and immigration advice call OTS Solicitors on 0203 959 9123 or contact us online.

Why immigration discrimination queries from employers will rise in number

Your business may not have had to seek employment law advice on immigration discrimination in the past and may question why it is relevant to you.

Any business can face a complaint or claim for immigration-based discrimination if the business employs someone who:

  • Is a sponsored employee on a Work Visa. For example, someone working in the UK on a Skilled Worker Visa or Senior or Specialist Worker Visa
  • Is from overseas and working in the UK on a non-Work Visa. For example, someone in the UK on a Family Visa or an international student on a Student Visa or a graduate on a Graduate Visa
  • Is settled in the UK. For example, they have settled status under the EU Settlement Scheme or indefinite leave to remain

Immigration discrimination questions from UK employers are likely to increase because:

  • The government has increased the minimum income requirement for the Skilled Worker Visa. This could increase immigration discrimination if employers have not been able to increase wages for employees employed by the business before April 2024
  • The government has increased the fines for employers who do not comply with the law on carrying out right-to-work checks. For overseas employees, the rules mean they may require regular right-to-work checks if they only have limited leave to remain
  • Employee perception that some workers are treated more favourably or less favourably because of their immigration status

The government has produced a code of practice for employers called ‘’Avoiding unlawful discrimination while preventing illegal working.’’ This code is worth reading whether your business has a sponsor licence or not or whether you employ one person or 100 overseas workers.

Immigration discrimination in the workplace

Discrimination against an employee by an employer or by the employee’s co-worker is illegal if the employee has a protected characteristic.

An employee’s immigration status is not a protected characteristic but any overseas migrant worker (whether they are a sponsored employee or not) or non-British employee does have a protected characteristic and so could make a discrimination claim. That is because they could all claim discrimination based on race.

The protected characteristic of race includes nationality meaning that a US banker has just as much right to bring a race-based discrimination case as a care worker from India working in a care home on a Health and Care Worker Visa. All an employee needs to show is that they were treated less favourably because of their nationality. Their discrimination claim will fail if they allege or can only prove that any discrimination was immigration motivated as opposed to motivated by the employee’s race or nationality.

Immigration Solicitors and Employment Lawyers recognise that it can be hard to distinguish between immigration-based and nationality-based discrimination. That is why it is essential to have clear and updated employment and discrimination policies for HR staff and managers to use and to take expert legal advice as soon as you identify a potential problem or a grievance is raised.

Immigration discrimination and right-to-work checks

The carrying out of right-to-work checks, if carried out without sensitivity, can engender a sense of discrimination, especially where an employee is subjected to repeat right-to-work checks because they only have limited leave to remain. The employee may feel they are being unfairly targeted for repeat checks when their colleagues are not or they may think that their honesty is being called into question as their employer is continuing to double-check their right to work in the UK.

Employers are obliged to carry out these checks or risk a civil penalty. The fines have increased to a maximum of £45,000 per worker for a first offence and increase to a fine of up to £60,000 per worker for a second offence. With fines of this size, it is essential that all UK business owners are fully compliant in carrying out their right-to-work checks and that their employees understand the reasons why initial and subsequent checks are being undertaken.

Avoiding immigration-based discrimination claims

If your business is taken to the employment tribunal with a discrimination claim there is no upper compensation limit. A claim could therefore be very expensive as well as cause reputational damage and tie up valuable HR resources and money in fighting the claim.

You will succeed in beating a discrimination claim if you can show the employee was not discriminated against or if you can prove that the discrimination was related to their immigration status rather than their race, nationality or ethnicity.

The best practice is to have systems in place to minimise the risk of employment tribunal claims through:

  1. Providing written information on why right-to-work checks are necessary and why some employees are asked to participate in more than one check
  2. Carrying out the checks in a sensitive manner through online checking where possible or if necessary manual document checking
  3. Explaining the reasons why information is requested about sponsored employees and the need to complete reporting and recording duties at the behest of the Home Office using the sponsor management system
  4. Ensuring that training or promotion opportunities are not weighted against those who are sponsored employees or who only have limited leave to remain in the UK. For example, a policy of only allowing an employee to apply for training or promotion if they have been in the UK for at least 5 years would rule out all sponsored employees and most of those on limited leave to remain. In some cases, there may be good reason to say that an employee needs to have been with the company to learn its systems before applying for training or promotion but an employee could say that the policy is immigration discriminatory if the policy says that to be approved for training or promotion the employee must have been in the UK for at least 5 years.
  5. Checking HR policies to avoid either racial or immigration discrimination. For example, if your company provides carers at home or within a care home or nursing home setting they may have or may need an English language policy. It may be acceptable to require all carers to speak English, even when 2 carers on Health and Care Worker Visas are from the same country and working shifts together if they are working with a client or a care home resident so the vulnerable person does not feel excluded from what is being said. However, it may be too draconian to require English to be always spoken, including during rest breaks

Immigration Solicitors and Employment Lawyers recommend great care is taken when formulating policies and putting them into action. Many sectors of the economy cannot recruit enough people from within the UK because of the UK skills shortage. They therefore have no choice other than to secure a sponsor licence and recruit overseas migrant workers on Skilled Worker Visas and Health and Care Worker Visas. Once an employer has gone to the trouble of sponsoring an employee your business does not want the worker to leave your employment for a competitor with a sponsor licence, especially if any replacement worker from overseas who is employed on a Skilled Worker Visa or Health and Care Worker Visa will need to be paid the increased minimum income requirement to qualify for a visa.

 How can OTS Solicitors help your business?

OTS Solicitors are specialist Immigration Solicitors and Employment Lawyers. We provide legal advice covering all aspects of immigration and employment law ranging from:

  • Sponsor licence applications
  • Sponsor licence and right-to-work training bespoke to your company's requirements
  • Sponsor licence management services for a fixed monthly retainer
  • Key personnel training
  • Advice on the certificate of sponsorship allocation
  • Employment contract advice
  • HR policy advice and policy reviews
  • Advice if your business receives a grievance
  • Employment tribunal claim advice and representation
  • Sponsor licence problem shooting if the Home Office says you are non-compliant or says it will be carrying out a compliance visit
  • Employment advice on contract terminations

UK Online and London-Based Immigration Solicitors, Sponsorship Licence and Employment Lawyers

For UK employment and immigration advice call OTS Solicitors on 0203 959 9123 or contact us online.

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