Discrimination headaches

There has been a general welcoming of the skills that foreign workers may bring, but some in the industry do not want to employ them on health and safety grounds. They are concerned that their poor language abilities mean they do not understand health and safety guidance which is given to them and are worried that these workers could put their own lives and those of their colleagues in danger. However, failure to employ foreign applicants could make them guilty of unlawful race discrimination.

The language barrier
Direct discrimination on the grounds of race is always unlawful. A person or company who refuses to employ foreign workers because they assume the workers lack sufficient English language skills is likely to be guilty of this.

A company will be guilty of indirect racial discrimination if a criterion is used which appears to apply to all people equally but which,in reality, applies to fewer people from a certain racial group, or groups. This discrimination cannot be justified.

If a company could show objectively that its workers are required to have a certain level of English to safely carry out their job, it could probably justify not employing a worker unable to speak English to that level. To do this the employer will need to: justify why English at that level was required; demonstrate that the requirement is not related to race (eg health and safety), and be able to demonstrate that the particular person could not comply. This may involve applicants completing some type of language test or otherwise making a full note of their communication skills during any initial interview.

It is therefore advisable to:

• Know in advance of recruiting workers what level of English is required.
• Follow guidance from organisations such as the Construction Confederation which gives guidance on ‘critical activities’ such as crane slingers or signallers where good English is essential for safety reasons.
• Decide how a candidate’s English will be assessed. Make sure that the same basis of assessment is used for all applicants and make a note of their competency.
• If using an agency, ensure that they know what level of English is required and give them the basis for your decision.

Payment rates
Construction companies commonly source labour from employment agencies. The recent expansion of the EU means that agencies can more easily supply skilled labour from countries where wages are comparatively low.

The agencies usually charge the hiring companies the same rate for all comparable workers, but it is suspected within the industry that the agencies pay workers from new accession countries at a significantly lower rate than their Western European counterparts.

The agency will be guilty of direct race discrimination if it pays comparable workers less simply on the grounds of race. A company that negotiates a reduced rate for agency foreign workers in these circumstances will probably also be guilty of race discrimination. This is because it is unlawful:

A company that refuses to employ foreign workers because they assume the workers lack sufficient English language skills will be guilty of discrimination.

• To subject a contract worker to detriment on the ground of race.
• To induce or attempt to induce a person to do anything which is unlawful under the Race Relations Act.
• For one person who has authority over another to instruct that person to carry out an unlawful act.

Employers who illegally employ foreign workers will be guilty of a criminal offence unless they can prove that they checked the worker’s entitlement to work and made copies of the documents which supported their decision. From 1 May 2004, new immigration laws changed the documentation which employers must see when assessing eligibility to work.

The law divides the documentation into two lists: documents which are sufficient evidence on their own of an employee’s right to work, and documents which in combination will be satisfactory evidence.

The first list includes passports or an identity card from a European Economic Area member country. The second list includes work permits, documents showing a person’s National Insurance number and birth certificates issued in the UK, Channel Islands, Isle of man or Ireland.

The Government’s guidance on the new law advises employers to follow three steps for all new employees regardless of race:

• Ask all potential employees to provide originals of one of the documents from list one or two of the original documents from list two.
• The company must be satisfied that the potential employee is the rightful holder of the documents presented, eg by checking their photograph and date of birth are consistent with the employer who presents himself.
• Make a photocopy of the relevant pages of the documents, for example the photograph page or page containing the government stamp or work endorsement

It is worth it?
Compensation for the victim of unlawful race discrimination is unlimited and can run in to thousands of pounds including an award for injury to feelings. A few simple steps now, could save much money, hassle and negative publicity later.

For more information contact Ceri Durham on cdurham@clarkslegal.com or visit our website www.clarkslegal.com