What Does the ‘Britons First’ Employment Policy Mean for UK Business?

A Tory MP has recently said that companies in UK have a “social duty” to hire local workers. How would such a discriminatory attitude influence immigration. AGI investigates

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Employers have a social responsibility to take on and train local young people, rather than taking the “easy option” of employing skilled workers from overseas, a Tory minister has said. In recent media interviews, skills minister Matthew Hancock said businesses that give local youngsters on-the-job training end up with more loyal and motivated workers, and get a substantial return on their investment. Employing more local workers would also aid economic recovery and tackle unemployment, he argued, calling on employers to consider their social duty as well as commercial interests.

His controversial comments are reminiscent of Gordon Brown’s 2007 call for “British jobs for British workers” — and have sparked similarly fierce debate. Surely to adopt such a recruitment approach would amount to discrimination, and downplays the merits of a flexible labour market? Or is it time for UK businesses that rely on migrant workers to rethink their recruitment culture?

The Government has effectively said yes, the time has come. Its sights are firmly set on getting to grips with immigration, as its divisive new “Illegal immigrants? Go home or face arrest” campaign suggests, and it has backed the minister’s comments. So, what does this mean for Asian workers seeking opportunities in the UK? Can businesses tweak their recruitment processes to put the local population at an advantage — and overseas applicants at a disadvantage — without falling foul of the law?

The first thing worth noting is that EU nationals have the right to be treated as equal to UK nationals with regards access to employment. This means UK employers cannot simply target jobs at people from the local population; with limited exceptions, posts have to be open to applications from EU nationals. In the same vein, the resident labour market test that is used to give UK residents a degree of priority over migrants for sponsored skilled positions also extends its protections to European nationals. Any change to this approach would be likely to create conflict between domestic immigration policy and EU legislation.

So there is little scope for employers to reduce their reliance on European workers — who make up around 70 per cent of the migrant workforce. This seems like bad news for the global Asian community, as it appears to put the 30 per cent of migrant workers who hail from beyond the EU in the firing line. But non-EU migrants cannot easily be marginalised in favour of local workers either. All UK employers are subject to the terms of the Equality Act 2010, which protects individuals from discrimination on the basis of race (including nationality or national origin). Creating or advertising roles exclusively for EU nationals could amount to race discrimination, and would be sure to provoke legal challenges.

Employers could potentially justify advertising for workers of a specific nationality or national origin if they can show the move to be a proportionate means of achieving a legitimate aim. However, if the move leads to race discrimination claims it falls to the courts to determine whether the justification is adequate, and case law in this area is limited — so it is a risky measure. In 2009, an Indian national took law firm Osborne Clarke to a tribunal for its policy of not accepting training contract applications from non-EEA nationals. The firm attempted to justify the policy on the basis of the cost, work and little prospect of success involved in securing a work permit due to the high calibre of resident worker applications, but this justification was rejected and the decision upheld at appeal.

A July 2013 report from the Office for Budget Responsibility says increased net inward migration would in fact improve the UK’s economic outlook.

In short, there is little that employers can do within the bounds of the law to reduce their reliance on migrant workers. Even if they could, the economic arguments for doing so are questionable. A July 2013 report from the Office for Budget Responsibility says increased net inward migration would in fact improve the UK’s economic outlook.  So arguably employers’ social responsibility would be to maintain, if not boost, recruitment of skilled overseas workers.

Be that as it may, the Government has its sights set on reducing net immigration. It has already made various legislative and policy changes (see Panel below) and seems keen to shift some of the administrative burden of immigration over to employers, with the overall effect of making it less palatable to hire overseas workers. A case in point was the decision to close the Tier 1 (General) and Tier 1 (Post-Study Work) categories to new applicants. This has forced more workers down the Tier 2 route which, unlike Tier 1, requires employers to shoulder various record keeping and reporting duties. Plans are also under way to expand the national apprenticeship scheme and launch a new traineeship scheme, both of which are available only to people living in England, so businesses are being given more incentive to recruit locally.

The Government looks set to continue tightening the screws on immigration and using both stick and carrot to encourage employers to recruit and train more local workers. Throughout this, care must be taken to maintain a flexible labour market that can effectively respond to UK business needs and continue to compete in the global economy.

PANEL:

Immigration policy changes

Since 2011, the skill level of the role that Tier 2 applicants are to undertake has been increased significantly following the Government’s independent Migration Advisory Committee findings. An annual cap has also been introduced on the number of certain Tier 2 sponsorships which can be granted each year, although this is currently running below capacity, so arguably it was set too high to have any realistic impact on migrant numbers. From April this year the salary thresholds to qualify under Tier 2 were increased. Other changes aimed at reducing net immigration have been proposed, including introducing an immigration security bond for “high-risk nationals.

Natasha Chell, Partner, Laura Devine Solicitors

Natasha is a Partner at Laura Devine Solicitors where she runs a business team and is responsible for the firm’s compliance. Natasha has worked with LDS since 2001 specialising exclusively in immigration and nationality law following qualification, first as a barrister in 2001 and then as a solicitor.

Natasha advises on all areas of business and personal immigration to the UK, as well as European free movement, and has particular interest in Tier 1 and Tier 2 applications. She regularly advises employers on complex Tier 2 compliance issues consulting on risk management and remediation strategies. Natasha directs the team’s employer audit service.

natasha.chell@lauradevine.com

Laura Devine Solicitors is a niche immigration firm and is recognised as one of the foremost immigration practices in the UK (ranked in ‘Band 1’ by legal directories). The firm provides specialist advice on all aspects of immigration to the UK and US, European free movement and additionally advises on immigration issues world-wide.

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