A national issue – British jobs, the Equality Act and the kick of a political football

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Posted in:Corporate and Commercial, HR and Employment, Litigation|March 20, 2015 | Join the mailing list

With a general election on the horizon, the political parties are currently trading blows on all sorts of issues and one that’s recently come to the fore again is that of “British jobs for British workers”. With talk amongst certain politicians about changing
the law to allow employers to discriminate in favour of applicants who hold a British passport, it’s a good time to take a look at what the equality legislation currently says about the issue of discrimination and nationality.

Under the Equality Act, it’s unlawful (except in very limited circumstances) to treat someone less favourably because they have a protected characteristic and the range of characteristics covered by the legislation is wide, as it includes age, disability, gender,
marriage and civil partnership status, religion, belief, sexual orientation, gender reassignment and race.

Most people know, of course, that discriminating against someone on the grounds of their race is unlawful, but what’s often not appreciated is the full definition of “race” contained in the Equality Act. “Race” under the Act includes, as you’d expect, the colour
of a person’s skin, but it also encompasses a person’s ethnicity and also their nationality or national origin.       

Consequently, if an employer gives preferential treatment to a job applicant on the basis that that applicant is British and turns someone else down for the job because they come from somewhere other than the UK, then that employer will be breaching the requirements
of the Equality Act in respect of race and will be leaving themselves exposed to an Employment Tribunal claim of unlawful discrimination by the unsuccessful job applicant.

Discrimination claims can be brought by employees irrespective of how long or short a time they have worked for their employer (unlike unfair dismissal claims where generally at least two years employment is required) and also can be brought by job applicants
who have applied for a position, but been turned down because of a particular protected characteristic.

Also, discrimination claims differ from unfair dismissal in respect of the amount of compensation which can be awarded by the Employment Tribunal, because in discrimination claims there’s no cap on the amount which the Tribunal has the power to award and discrimination
compensation can sometimes, therefore, be very substantial in amount. Furthermore as well as including compensation for the financial loss suffered by the claimant, the award can include an amount to compensate for the injury to feelings which the claimant
has sustained because of the discrimination to which they have been subjected.

If a future Government were to decide to allow employers to follow a policy of “British jobs for British workers”, then this would certainly require a significant amendment to be made to the Equality Act and there would doubtless be a lot of political argument
one way and another, both inside and outside of Parliament, while such a proposed change was being debated. Whether we ever get that far, however, must be subject to a lot of doubt and it’s surely more likely that the Act will remain as it’s currently drafted
in respect of this issue of race and nationality. This political football may simply end up in the long grass like so many others, and many people may feel that in the end that’s where it’s best left.

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact
Nigel Crebbin
of the Berg Employment Team on 0161 833 9211 or email him at

Follow us on Twitter: @Berg_HR

(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should
be obtained before taking, or refraining from taking, any action as a result of this article.)

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