OSBORNE CLARKE SERVICES v MR A PUROHIT [2009] UKEAT 0305_08_0902

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2009] UKEAT 0305_08_0902

Case No Appeal No. UKEAT/0305/08

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

OSBORNE CLARKE SERVICESAPPELLANT

MR A PUROHITRESPONDENT

Before

His Honour Judge Ansell Professor S R Corby Mr S Yeboah

Date 9 February 2009

[1]APPEARANCES For the Appellant MS C WEIR (of Counsel) Instructed by: Messrs Osborne Clarke Solicitors 2 Temple Back East Temple Quay Bristol BS1 6EG For the Respondent MR A PUROHIT (Respondent in Person) SUMMARY RACE DISCRIMINATION: Direct Tribunal correct that the employers could not justify their policy of not accepting applications for training contracts from non-EEA nationals. HIS HONOUR JUDGE ANSELL This is an appeal from a decision of a Bristol Employment Tribunal chaired by Employment Judge Christensen, who, following a hearing in March 2008 in a reserved judgment delivered on 18 April 2008, dismissed Mr Purohit's claims for direct race discrimination but made findings of indirect race discrimination on the grounds of nationality. Leave for this hearing was given by Mr Justice Elias by order dated 9 July 2008.

[2]The claim arose out of the application to Mr Purohit of Osborne Clarke Services' (OC) policy of not considering any application for solicitor training contracts from individuals requiring permission from the Border and Immigration Agency (BIA) to work in the UK, i.e. those needing a work permit. This policy would therefore affect non-EEA nationals, who by virtue of their immigration status were not permitted to work in the UK.

[3]It was not disputed that Mr Purohit, being an Indian national, was a member of a racial group identified as a non-EEA national and was therefore entitled to bring a claim for discrimination in accordance with the authority of Orphanos v Queen Mary College

[1985] 1 AC 761

. The Tribunal determined that the requirement or condition applied was that somebody does not require a work permit and that the proportion of non-EEA nationals who could comply with that requirement was smaller than the proportion of persons not in that group who could comply with it. The Tribunal determined that the employers could not justify that requirement or condition and it is the issue of justification which is the subject of this appeal.

[4]The background facts were not in dispute. Mr Purohit had applied on-line for a training contract on 11 June 2007. The application process asked three preliminary filter questions. Two were academic requiring a 2.1 degree and a minimum of 320 UCAS tariff score and the third question related to whether the applicant had a work permit to work in the UK. By answering "no" the potential candidate would be put through to a further page online where he was told that he did not meet the entry requirements, with this additional comment:

"We are sorry but we are unable to accept applications from candidates who require a work permit to take up employment in the UK."

Later in the decision the Tribunal noted that Mr Purohit had a first class degree and a 2.1 Master's degree. He did in fact go on to make an application online and his online form produced a further response:

"Unfortunately we are unable to obtain work permits for trainee solicitor roles and we are therefore unable to proceed with your application."

[5]In the year in which Mr Purohit applied OC received 290 applications. Those applications were sifted down to 56 candidates who were sent to an assessment centre; and eventually 26 were offered training contracts; the overall cost of this process being around £87,000. OC gave evidence that they had never applied for a work permit for a trainee solicitor but when running recruitment competitions for qualified solicitors, which involved far fewer numbers, they had made applications and indeed employed solicitors who had been granted work permits, the Tribunal noting that OC had not provided any evidence of any difficulty encountered by them with the BIA in terms of that process.

[6]The respondents referred the Tribunal to the BIA Guidance for Employers in connection with work permits. That guidance uses the term "resident worker" referring to EEA nationals. The following paragraphs are relevant to this case:

"49. You will need to show why you cannot fill the post with a 'resident worker' (see paragraph 2). In most cases you will also need to give details of your recruitment methods and give credible reasons why you did not employ a suitably qualified or experienced 'resident worker' or one who, with extra training, could do the job. 51. If you have not met these conditions we may refuse an application and you may have to carry out another recruitment exercise before we reconsider the application. 59. An application will fall for refusal where you have refused to employ a resident worker solely because of a lack of qualifications, experience or skills (including language skills) that were not specifically requested in the job advertisement. 60. To make sure that the results of your advertising reflect the current availability of the skills you need, you should place the advertisement no more than six months before you apply to us. 61. You should allow four weeks for the whole recruitment process to be completed from the date the post was advertised before you send your work permit application."

[7]In addition the work permit application form had a section in which the employer had to set out reasons for employing that person and they were required to give details of the number of applicants and specify how many were resident workers and the number shortlisted and again how many were resident workers. There is a section headed as follows:

"Please give specific reasons why you did not employ each 'resident worker', including those you did not shortlist."

The form then had to be signed with a declaration in the following terms:

"The details given in this application are true and complete to the best of my knowledge and belief. I am aware that knowingly making false statements or representations may lead to prosecution (possibly resulting in imprisonment) under the Immigration Act 1971, as amended by the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act 2002."

[8]Before the Tribunal OC argued that they would be unable to sign that declaration because of what was stated in the Guidance and in particular paragraph 49, arguing that even if Mr Purohit had been a superior candidate to other EEA nationals, since the nature of the job involved training those less successful EEA candidates could, with extra training, always do the job. In addition OC argued that even if they submitted a form there was little prospect of success because of the BIA Guidance. This would result in unnecessarily raising the expectations of candidates, the additional cost of taking them through the process and also the considerable work involved for OC in completing the form and potentially having to give details of the recruitment exercise in relation to each and every candidate and certainly those who were shortlisted onto the assessment process. The Respondents also gave evidence to the Tribunal that there was an additional expense of £190 in applying for a work permit. The Tribunal rejected these arguments.

(c) sets out the following:

"Information about eligibility to work in the UK, which employers are required to obtain under the Asylum and Immigration Act 1996, should preferably be verified in the final stages of the selection process, to make sure the appointment is based on merit alone, and is not influenced by other factors. Employers can apply for work permits and should not exclude potentially suitable candidates from the selection process. Depending on the employer's recruitment process, and the type of job being filled, candidates might be asked for the relevant documents when they are invited to an interview, or when an offer of employment is made. It is important to carry out these checks before the persons employment begins. The Home Office (see Appendix 5) has published a code of practice for employers on how to avoid unlawful racial discrimination when complying with this requirement."

The Tribunal went on to reject the Respondent's submissions that there was no realistic prospect that they would be able to certify to the BIA that they could meet the stringent eligibility criteria for a work permit. They pointed out that there was no evidence of any dialogue between OC and the BIA to test the assumption that they had made, noting that OC had been able to successfully obtain work permits for qualified solicitors. The Tribunal noted that OC had failed to carry out any review or considered the likelihood of successfully gaining work permits, concluding that all paragraph 49 of the Guidance required was for employers to give credible reasons for their selection and why, given that selection, they did not think that they could train somebody else not requiring a work permit to the same standard.

[9]The Tribunal went on to conclude that since OC were not fixed by any particular number of trainees they had to recruit each year if they found somebody who was suitable to them and was a non-EEA national and who needed a work permit there was nothing to stop them also offering training contracts to less or comparably suitable EEA residents, thereby satisfying the declaration. Finally in response to the argument that OC could not start considering people who needed work permits as it could clog up the system, the Tribunal pointed out that the data presented was that there were only a few individuals each year who had actually submitted applications notwithstanding that they did need a work permit, and the Tribunal concluded that it did not believe that this would open the floodgates. They also rejected costs arguments as being "an unattractive way of justifying indirect discrimination".

[10]Ms Weir on behalf of OC attacked the Tribunal's decision. In general she submitted that the issue for the Tribunal was whether OC had established on the balance of probabilities that the policy was justifiable irrespective of the Respondent's colour, race, nationality or ethnic or national origins, see section 1(1)(b) Race Relations Act . In determining this issue the Tribunal were required to balance the discriminatory effects of the policy on the Respondent against the reasonable needs of OC and to assess whether OC had objectively demonstrated the policy was reasonably necessary, see Hampson v Department of Education

[1989] ICR 179

. She submitted that in formulating this policy OC was not required to:

"have regard to some hypothetical or utopian situation which does not correspond with the reality, even though the reality may well be regrettable."

See Ojutiku v Oburoni v Manpower Services Commission

[1982] ICR 661

at 672 B D (per Stephenson LJ).

[11]Ms Weir submitted that the Tribunal's central task was consideration of whether OC were reasonably justified in believing that(1) it could not sign the BIA form in respect of a potential trainee solicitor in circumstances where the form incorporated the declaration that the employer knew of no suitable EEA national worker who would be displaced as a result of employing the work permit application; and

(2) that even if it could sign the form the BIA Guidance properly construed would have resulted in any such application being rejected after considerable administrative resources had been expended on it.

[12]She then went on to criticise the Tribunal's decision in three significant respects.

[13]Firstly she contended that the Tribunal had expressed excessive reliance on the Code of Practice and in particular the passage that states:

"Employers can apply for work permits and should not exclude potentially suitable candidates from the selection process."

She argued that this acceptance ignored the central issue for determination of whether OC could in fact apply for work permits for trainee solicitors. She argued that their acceptance of the Code without qualification would appear to determine without further consideration the issue of whether OC could in fact in the circumstances of this case apply for a work permit.

[14]Mr Purohit argued that the Tribunal were quite entitled to consider the Code of Practice in assessing the general background against which the facts of the case had to be judged. He referred us in particular to paragraph 1.5 of the code which sets out its purpose and in particular the purpose is to:

"give employment tribunals and courts clear guidelines on good equal opportunities practice in employment."

He referred us also to paragraph 1.6 under the heading "Status of the Code" " Status of the code 1.6 This code is a statutory code. This means it has been approved by the Secretary of State and laid before Parliament. The code does not impose any legal obligations. Nor is it an authoritative statement of the law; only the courts and employment tribunals can provide this. However, the code can be used in evidence in legal proceedings brought under the RRA. Courts and tribunals must take account of any part of the code that might be relevant to a question arising during those proceedings. 1.7 Employers are liable for acts of unlawful racial discrimination or harassment by their workers (see the glossary at Appendix 7). However, employers should be able to defend themselves better in any case of alleged racial discrimination brought against the organisation, if they can show they have taken the steps recommended in this code."

[15]We agree with his submissions. In our view the Tribunal set out the position clearly at paragraph 75 as follows:

"Ultimately, whether or not the BIA does or does not issue a work permit is a decision for them. Without any evidence to support their stance, it is not for the respondent to second guess the BIA, to assume that the BIA will not grant a work permit and to use that assumption as their reason for not even considering applications from applicants, such as the claimant, on merit."

The Code makes it clear that as far as possible selection should be based purely on merit, and that work permit issues should only come into consideration at the later stage of selection. The Code makes it also clear that as far as possible the employers should make an application leaving it up to the immigration authorities to determine the outcome.

[16]The second submission that lies at the heart of this appeal is that the Tribunal failed to correctly interpret the Guidance and in particular failed to consider, having regard to that Guidance, whether OC was objectively justified in taking the view that having regard to the substantial numbers of EEA potential trainees applying(1) it could not certify to the BIA that a work permit was required for a non-EEA national trainee and

(2) even if it could such an application would necessarily be unsuccessful resulting in the expenditure of considerable time and effort to no end.

[17]As examples of the Tribunal's alleged failure Ms Weir submitted that the Tribunal were wrong to be influenced by the fact that there was no direct evidence from the BIA as to how they would have applied their guidance in the circumstances of this case. She argued that this overlooked the fact that interpretation of the Guidance was a matter for the Tribunal and also that unless OC could reasonably be expected to sign the declaration no application for a work permit could be submitted.

[18]Secondly, she argued that the issue of the BIA policy was not whether an applicant for a work permit was the most suitable, according to OC's rigorous assessment, but whether in applying for that permit OC was overlooking other applicants (EEA nationals) who would be suitable for the job if necessary after the training. In particular she cites paragraph 85 of the Tribunal's decision:

"We do not accept the BIA policy requires employers to disregard the best candidates because there are inferior candidates that could be employed who are EEA Nationals."

[19]Thirdly, she complained about the passage that we have referred to above where the Tribunal suggested that because the number of trainees was not fixed OC could if necessary employ both a suitable non-EEA national as well as comparable EEA applicants. She contended that the Tribunal interpreted the Guidance incorrectly, arguing that until the BIA was satisfied that all possible suitable EEA nationals had been offered training contracts the issue of offering a work permit to a non-EEA candidate would not arise.

[20]Mr Purohit in response argued that the Tribunal were entitled to take the view they did concerning OC's view of the Guidance, because of the total absence of evidence put forward by OC that the BIA would take this view. Indeed the only tangible evidence was in respect of qualified solicitors, admittedly involving far fewer numbers, where OC had not experienced any problems in dealing with the BIA and obtaining the necessary permit. He suggested that it was OC who were seeking to have regard to a hypothetical situation that was criticised in Ojutiku .

[21]The Tribunal in paragraph 80 and 82 summed up their view:

"80. There is nothing tangible to support that assumption and no evidence of any dialogue between the respondent and the BIA to test the assumption that they have made. There is, therefore, nothing that goes to support the assumption that there is no point in applying for a work permit as one will not be provided. 82. We do not accept that it is for the BIA to tell the respondent – a leading international law firm – who is suitable for them to employ in a qualitative sense. It is for the respondent to identify who they consider to be the most suitable – according to their necessarily and properly high criteria – and then to make the case to the BIA for a work permit if they consider there is a case to be made."

[22]We agree with that approach. It seems to us and in the absence of any evidence as to dialogue with the BIA or any attempts to apply for a permit OC did not begin to establish the level of evidence that is required to prove a justification on an objective basis. Indeed it seems to us that the very detailed nature of their assessment process would provide the level of evidence that could well satisfy the BIA in determining a work permit application.

[23]Whilst we accept that there is a training element to the job we see nothing wrong in OC making application to the BIA on the basis that a particular non-EEA applicant displays sufficient qualities to indicate that with OC's training contract he will become a better qualified solicitor than a particular non-EEA candidate.

[24]We accept the point made by Ms Weir that the Tribunal's comment that if necessary both comparable EEA candidates and non-EEA candidates could be taken on did not appear to be a legitimate response to OC's arguments; nevertheless the Tribunal's comment does not detract from their overall view that in the absence of any clear evidence as to the likelihood of failure OC's own conjecture that they could not apply or would not be successful was insufficient.

[25]Her final ground relates to six areas of factual determination by the Tribunal which she contended were either perverse or irrelevant considerations. She has set them out in detail in paragraph 41 of her submissions. Briefly they relate to the issues concerning(a) the training post,

(b) the large number of applications,

(d) the supernumerary issue,

(e) OC's successful application for a work permit for a qualified solicitor, and

(f) the Tribunal's comments as to Mr Purohit's potential suitability for employment.

[26]After considering all six of them we are satisfied that the Tribunal did consider the issues properly. In her oral submissions to us Ms Weir made great play of the large numbers of applicants involved which could involve OC in having to place before the BIA a considerable volume of material in order to try and justify their selection. The Tribunal considered this area at paragraph 61 and in our view clearly formed the view that the results of OC's selection process could indeed provide what the Tribunal described as "credible reasons" to place before the BIA.

[27]As to the supernumerary issue the Tribunal clearly were of the view that this was a factor that could work in favour of the BIA accepting the non-EEA national and we cannot see anything perverse in the Tribunal forming that view.

[28]It follows therefore that we cannot find any substance in the grounds advanced on behalf of the Appellant and accordingly this appeal is dismissed.