EMPLOYING MIGRANT WORKERS A GOOD PRACTICE GUIDE FOR EMPLOYERS FOR PROMOTING EQUALITY OF OPPORTUNITY

Transcription

1 EMPLOYING MIGRANT WORKERS A GOOD PRACTICE GUIDE FOR EMPLOYERS FOR PROMOTING EQUALITY OF OPPORTUNITY

2 THE EQUALITY COMMISSION FOR NORTHERN IRELAND The Equality Commission is an independent public body which has responsibility for enforcing the anti-discrimination laws in Northern Ireland. Our general duties include working for the elimination of unlawful discrimination; promoting equality of opportunity and affirmative action and keeping under review the operation of the anti-discrimination laws. Further information may be obtained from the Equality Commission. The Commission s contact details are given at the back of this booklet. INTRODUCTION A migrant worker is a citizen or national of one State who leaves his or her country of origin in order to work, or to seek work, in another country. In recent years the population of Northern Ireland has become more ethnically diverse. In large part this diversity is due to the substantial numbers of migrant workers who have come to live and work here. Most, but not all, of these people have come from the other Member States of the European Union, particularly from the Accession, or A8, States. 1 This publication is principally intended to provide employers with practical guidance on how best to comply with their responsibilities under Northern Ireland s anti-discrimination laws regarding their treatment of migrant workers. However, more generally, it may also serve as a guide for employers regarding their treatment of job applicants and employees from different ethnic groups, regardless of whether those persons are migrant workers or not. The guidance is given in the form of frequently asked questions and answers. 1 The A8 States are the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia. 1

3 The anti-discrimination laws prohibit discrimination on the equality grounds in the fields of employment and occupation. A list of the antidiscrimination laws is given in Appendix 1. The statutory equality grounds are- Race (including colour; ethnic or national origins; nationality; belonging to the Irish Traveller community) Religious belief Political opinion Sex Disability Sexual Orientation Age Of the anti-discrimination laws, the Race Relations (NI) Order 1997, which prohibits discrimination on racial grounds, is the one that most obviously will have a significant impact on the relationship between employers and their ethnically diverse workforces. But, the Race Relations (NI) Order does not merely prohibit racial discrimination against migrant workers, or other persons from the black and ethnic minority communities, or the Irish Traveller community. It prohibits racial discrimination against all persons, including local persons, regardless of their race, colour, ethnic or national origins or nationality. Employers must always bear this in mind. In addition, it must be remembered that for the purposes of the antidiscrimination laws no person is defined solely by reference to his or her race, colour, ethnic or national origins or nationality. Every person is either a man or a woman; he or she will have a particular marital or family status; he or she will have a particular religious belief, or nonbelief, and a political opinion; he or she may be disabled; he or she will have a particular sexual orientation; and, he or she will be of a particular age. Furthermore, some of these attributes will, or may, change over time. Consequently, the other anti-discrimination laws are also relevant to the relationship between employers and their job applicants and employees, regardless of whether those persons are migrant workers or not. 2

4 The anti-discrimination laws apply to all employers. They also apply to persons who engage contract workers; employment agencies; persons who appoint office-holders; vocational organisations; the providers of vocational training services; partnerships (in relation to the employment of partners); bodies who confer vocational qualifications; and, bodies in charge of further and higher educational establishments (in relation to providing education to students). All references to employers in this guide include references to the other categories of persons listed above. The anti-discrimination laws use terms such as direct discrimination, indirect discrimination, victimisation and harassment to describe the different types of discriminatory conduct which are prohibited. Further information on the definitions and meanings of these terms may be found in other publications issued by the Equality Commission; a list of which is contained in Appendix 2. The guide does not attempt to describe every set of circumstances that may arise. However, in due course the Equality Commission may publish further guides to address other scenarios and to answer other frequently asked questions. The guide should not be taken as an authoritative statement of the law. 3

5 EQUAL OPPORTUNITIES AND HARASSMENT POLICIES Q. Should employers have written Equal Opportunities and Harassment policies? A. Yes: This is the first step in demonstrating a commitment to promoting equal opportunities and to establishing a good and harmonious working environment. It is also a crucial piece of written evidence that may assist an employer to establish a reasonable steps defence in the event of a discrimination complaint. The Equality Commission has produced model polices which may easily be adapted by employers, even small employers, to suit their own particular circumstances. These can be obtained from the Commission or downloaded from its website.. RECRUITMENT ADVERTISING Q. How should an employer advertise job vacancies? A. The general rule is that an employer should advertise as widely as is practicable so that as many eligible and suitably qualified candidates as possible have an opportunity to apply. Employers should not publish job advertisements in locations or publications where they are likely to be read only by persons of a particular community, sex, ethnic group, age, disability or sexual orientation. For example, do not advertise vacancies exclusively in newspapers that are read wholly or mainly by persons from one community, sex or ethnic group Employers should take care when attempting to attract applicants from countries outside Northern Ireland. For example, if a business has 10 vacancies for production operative posts in a factory in Northern Ireland, it should not advertise those vacancies exclusively in countries outside 4

6 Northern Ireland. To do this would be to deny equality of opportunity to residents of Northern Ireland and might give rise to complaints of unlawful racial discrimination. Instead, the employer should simultaneously advertise the vacancies in an appropriate newspaper(s) and/or in job centres or agencies in Northern Ireland and in the other country or countries. Employers might also consider advertising vacancies in EURES, the European job mobility portal, whose web address is RECRUITMENT AND SELECTION PROCEDURES Q. How should an employer process job applications? A. Employers should develop and implement systematic and objective selection procedures. These procedures should be designed to ensure that the best people for the job are selected. The equality codes of practice provide plenty of advice about what steps the procedures should consist of and further guidance may be obtained from the Equality Commission. However, the critical rule is that the same procedures should, as far is practicable, be applied to all persons equally and consistently. In the example given above, when filling the 10 vacancies the employer should consider the applications received by all applicants, regardless of their country of origin, together and should seek to select the best 10 candidates from the entire pool of applicants. The employer should apply the same selection criteria to each applicant and should only offer work to candidates in the merit order of those who satisfy the criteria. A failure to apply the same procedures and criteria to all 5

7 persons could give rise to complaints of direct discrimination. On the other hand, employers should guard against having procedures and criteria that are more stringent than they actually need to be, particularly if this places migrant workers at a substantial disadvantage compared to other persons - this could give rise to complaints of indirect racial discrimination. The following examples will illustrate some of the dangers: Example 1 - Incomplete application forms Where practicable, an employer should require all applicants to complete structured application forms in recruitment exercises. If an employer has a practice of rejecting job applications from local persons who fail to answer all of the questions on the application forms, then the employer should also reject the applications of migrant workers who fail to answer all of the questions too. Otherwise, the local applicants could complain of direct racial discrimination. But, the employer should also bear in mind that it may be more difficult for some migrant workers; particularly those from countries where English is not the first or main language, to complete an application form in English, particularly if their standards of English literacy are not high. If this occurs, the employer must justify the practice of rejecting all incomplete applications by considering whether the questions contained in the forms are really necessary for determining a job applicant s suitability, and by considering whether other practical and less discriminatory means of determining suitability are available. If the job in question requires the job-holder to have a high standard of literacy in English, then the employer is probably justified in the practice, particularly if the forms are used to assess the applicants literacy standards. On the other hand, in a job that requires little, or no, English literacy skills then the employer should use an application form that seeks only the information that is relevant and necessary for processing the application. In such cases it may be just as practicable to obtain additional information through a job interview, or even through a CV, if the applicant has submitted one that 6

8 conforms to the general structure of the employer s standard application form. Example 2 - Academic qualifications Employers who require candidates to have academic qualifications should apply the same academic standards to all applicants. However, to avoid discriminating against migrant workers, employers should not simply specify that candidates must have qualifications that can only be obtained in the educational systems of Northern Ireland, Republic of Ireland or Great Britain (e.g. GCSE s or A-Levels or Leaving Certificates) but should make allowance for the fact that persons who have been educated elsewhere are unlikely to have these particular qualifications but may have corresponding qualifications of equivalent value gained in the educational systems of their home countries. Therefore, employers should have a procedure for evaluating the comparative value of qualifications gained overseas with those gained in Northern Ireland, Republic of Ireland and Great Britain. Employers can obtain advice on these matters from the Council for the Curriculum, Examination and Assessment [ ], or from the UK National Reference Point [ ]. Example 3 - References If an employer has a practice of seeking references and would reject a local person who is unable to provide a reference, then the employer should also reject the applications of migrant workers who also are unable to provide references. Otherwise, the local job applicant could complain of direct racial discrimination. But, the employer should also bear in mind that it may be more difficult for migrant workers to provide references, or they may provide ones in foreign languages that the employer cannot read. The employer s practice of obtaining references may place these applicants at a substantial disadvantage compared to local applicants: that is, potential indirect racial discrimination. If this occurs, the employer must justify the practice of seeking references by considering whether they 7

9 are really necessary for determining a job applicant s suitability, or by considering whether other practical and less discriminatory means of determining suitability are available (e.g. arranging for references in foreign languages to be translated; or, employing staff initially under a probation period). ASKING ABOUT A JOB APPLICANT S NATIONALITY IMMIGRATION STATUS OR WORK PERMIT STATUS Q. Does an employer have to ask about a job applicant s nationality, immigration status or work permit status? A. There is no need to ask applicants about their immigration status and it is good practice not to do so as it may mislead employers in to making discriminatory decisions. Questions about nationality are best left off the application form. This does not prevent employers from conducting equal opportunities monitoring about the ethnic or national origins or nationality of their employees. Such monitoring, however, is best done by way of a separate and confidential equal opportunities monitoring form. Further information on this topic is given in the section on monitoring below. However, it is permissible to ask job applicants whether they need permission to work in the UK. This is best done through a simple question on the application form such as: Do you need a work permit to work in the UK? In practice, most job-seekers, including all who are nationals of the member States of the European Union, are not subject to immigration control and have permission to work in the UK. 2 However, most nationals of the A8 countries who are working in the UK are required to register with the Home Office under 2 Bulgaria and Romania will join the European Union in January Their citizens will only have limited rights to work in the UK and will require work permits or other authorisation. 8

10 the Workers Registration Scheme. 3 When applying for registration, these workers are required to provide a letter from their employer which confirms the start date of their employment. Employers should provide these letters on request for it helps to ensure that they are authorised to employ the workers in question; for otherwise the employers will be guilty of an offence. Further information for employers about the Workers Registration Scheme may be obtained from the Home Office website: It is also unlawful for employers to employ a person who is subject to immigration control where that person does not have permission to work in the UK. In practice, most migrant workers do not come within this category. Employers can avoid committing an offence by requesting all persons who are about to start working for them to provide at least one document from a prescribed list of documents. To avoid discriminating against any person on grounds of race, employers who make such document checks should request all prospective new employees, regardless of their ethnic or national origins or nationality, to provide the relevant documents. Employers should not merely ask migrant workers to provide the documents; local workers should also be asked to provide them as well. Further information on this subject can be obtained from the Immigration and Nationality Directorate of the Home Office which has also produced a code of practice to advise employers. The code sets out the prescribed list of documents which employers may ask prospective employees to provide. The code may be downloaded from the Home Office s website at the web address: king/codeofpractice/fullcode 3 The Workers Registration Scheme will not apply to nationals of Bulgaria or Romania. 9

11 PROVISION OF TRANSLATION SERVICES Q. Should employers translate their Staff Handbooks, policies and procedures, contracts of employment, health & safety notices or other documents into other languages? A. There is no simple answer to this question and there are dangers for the unwary employer. For example, an employer who employs migrant workers who originate from countries where English is not the first or main language and who does not translate these documents is at risk of committing one or more acts of unlawful indirect discrimination. If a high standard of literacy in English is a justifiable job criterion, then it is unlikely that a person who does not meet that standard, regardless of his or her ethnic or national origins, will be selected to do the job. A person with a high standard of English literacy is unlikely to require documents to be translated into other languages and is unlikely to be placed at a particular disadvantage by an omission to do so. The risk of indirect discrimination really lies in respect of jobs for which there are no, or there are low, English literacy standards required. For example, workers from countries where English is not the first or main language, even if they are able to converse in spoken English, may not necessarily be able to read written English, or read it well, but this will not prevent them from performing the duties of such jobs satisfactorily. However, even for jobs of this nature there will inevitably be a series of documents associated with the work, like Staff Handbooks, company policies and staff notices. These will usually be written in English. Workers from countries where English is not the first or main language may be at a particular disadvantage compared to local workers when it comes to understanding the contents of such documents, particularly the more important ones. 10

12 As a matter of good practice, an employer ought not to presume that an employee who signs an application or other form in English, or an acknowledgement slip understands the contents of those English language documents. Instead, an employer ought to try to determine during the job interview or induction that the employee can read and understand written English to a standard comparable to that of local workers. Where the new employee is unable to do this, then the employer ought to take additional steps to ensure that the contents of important written documents are communicated to the employee. For example, the employer might increase the length of the induction session so as to spend extra time explaining the contents of a Staff Handbook, or at least the most important policies: for example, Equal Opportunities; Harassment; Discipline and Dismissal; Health and Safety policies. An employer should also consider translating the Handbook, or some of the more important policies, into other languages. The employer should actually provide the translated documents where it is reasonably practicable to do so. In considering whether it is practicable to do this, an employer should take into account the following factors- the relative importance of each document: thus, it might reasonably be considered that Equal Opportunities, Harassment and Health and Safety policies are more important than some other policies and, therefore, it may be more practicable to translate these policies rather than others, or to give priority to translating these ones first; the availability of advice and support from other bodies: for example, the Health and Safety Executive provides health and safety information in a variety of languages see the H&S Executive s website at the relative numbers of its employees from a particular country who require translated documents: thus if the 11

13 employer employs a relatively large number of Polish workers but very few Portuguese workers, then it may be more practicable to translate a wide range of documents into Polish but only the most important ones into Portuguese; the potential that the content might be subject to imminent or frequent change: thus, a recently updated Equal Opportunity and Harassment policy is unlikely to be changed for several years to come, therefore, it may be more practical to translate documents like this than ones that change very frequently; the resources available to the employer. It is unlikely that cost will be deemed to be an over-riding factor. Simply because it costs money to provide translated documents is not a sufficient excuse in itself for failing to do so. However, it may be a factor in setting priorities, particularly in the light of the other factors described above. THE USE OF LANGUAGES IN THE WORKPLACE Q. Is it discriminatory for an employer to forbid workers to speak in languages other than English in the workplace? A. This is a question of balance. On the one hand, it is unlikely to be justifiable for an employer to absolutely forbid the speaking of non-english languages on all occasions and at all times in the workplace. For example, in most workplaces workers often engage in casual conversations, even in the course of their work. It is likely to amount to unlawful race discrimination if an employer forbade workers from countries where English is not the first or main language from having such casual conversations with each other in 12

14 their native languages whilst permitting local workers to have casual conversations in English. On the other hand, it may be justifiable for an employer to require workers to speak English in certain circumstances: for example, where to do otherwise would hinder effective communication with the result that health and safety risks are substantially increased. Another example may be where effective communications are required in dealings with a business s English-speaking customers. TIME-OFF FOR RELIGIOUS OBSERVANCE Q. How should an employer treat employees requests for time-off for religious observance? A. This too is a question of balance. In regard to days of religious observance which occur during an employer s normal working week, if the employer provides Christian workers with the opportunity to take time off to attend church services (e.g. on Ash Wednesday) it will amount to direct religious discrimination against workers of other faiths (e.g. Muslims, Jews, Hindus) if the employer does not provide them with the opportunity to take time-off too to attend similar services in their places of worship. The employer could also be discriminating against any workers who are refused opportunities to take time off for secular activities (e.g. to visit a dentist, or to attend a school play or sports day). However, employers must be careful about adopting an inflexible solution that prevents all workers from ever having an opportunity to attend religious ceremonies. This entire issue is one that is better considered under the heading of flexible working. An employer will probably have valid reasons for adopting a particular working pattern but if it is too inflexible, for example, by refusing to allow any 13

15 worker to take time off for any reason, it may disadvantage people who need to take time off, whether for religious or secular reasons. The employer may be able to justify an inflexible policy if there are good business reasons for it: for example, at certain very busy times of the year it may be necessary to have all workers present during certain hours so as to meet particular targets or to fulfil business orders, but otherwise the employer should allow some flexibility in his arrangements. Most business plans probably have some capacity to permit a degree of flexibility. Where this exists, the employer should adopt a fair procedure for dealing with requests for time-off. 14

16 EQUAL OPPORTUNITIES MONITORING Q. Are employers required to conduct equal opportunities monitoring? A. Monitoring community background and sex Under the Fair Employment & Treatment (NI) Order 1998, all employers who employ 11 or more full-time employees (i.e. employees who work for more than 16 hours per week) are required to register with the Equality Commission. After registering with the Equality Commission, employers are then required to monitor the community background and sex ofall their job applicants and employees. An employer must not direct or advise any job applicant or employee to record on a monitoring form that he or she is from one or other or neither of the two main communities in Northern Ireland. Monitoring race or any other equality ground The Race Equality and other equality codes of practice recommend, as a matter of good practice, that employers monitor their workforces [see Appendix 2 for a full list of the equality codes of practice]. Furthermore, public-sector employers who are designated for the purposes of Section 75 of the Northern Ireland Act 1998 are required to monitor the impacts of their polices, including employment policies, across nine equality grounds, including race. For those employers who employ migrant workers, the Equality Commission particularly recommends that they monitor the ethnic group or nationality of their workforces. For further information on the subject of monitoring, employers may contact the Equality Commission. 15

17 APPENDIX 1 THE ANTI-DISCRIMINATION LAWS Equal Pay Act (NI) 1970, and Sex Discrimination (NI) Order 1976 These laws prohibit discrimination on the grounds of sex; pregnancy and maternity leave; gender reassignment; marital status or civil partnership status. Fair Employment & Treatment (NI) Order 1998 This law prohibits discrimination on the grounds of religious belief and political opinion. Race Relations (NI) Order 1997 This law prohibits discrimination on the grounds of race; colour; ethnic or national origins; nationality; belonging to the Irish Traveller community. Disability Discrimination Act 1995 This law prohibits discrimination against disabled persons. Employment Equality (Sexual Orientation) Regulations (NI) 2003 This law prohibits discrimination on the grounds of sexual orientation. Employment Equality (Age) Regulations (NI) 2006 This law prohibits discrimination on the grounds of age. APPENDIX 2 USEFUL PUBLICATIONS The Equality Commission has published a number of Codes of Practice, good practice guides and other advisory materials- 16

18 SHORT GUIDES Religious Belief and Political Opinion Discrimination Law in Northern Ireland Sex Discrimination and Equal Pay in Northern Ireland Racial Discrimination Law in Northern Ireland Disability Discrimination Law in Northern Ireland Sexual Orientation Discrimination Law in Northern Ireland CODES OF PRACTICE Fair Employment in Northern Ireland [1989] Removing Sex Bias from Recruitment and Selection [1995] Code of Practice on Equal Pay [1999] Protecting the Dignity of Women and Men at Work A Code of Practice on Measures to Combat Sexual Harassment [European Commission, 1991] Code of Practice for Employers for the Elimination of Racial Discrimination and the Promotion of Equality of Opportunity in Employment [1999] Disability Code of Practice Employment and Occupation [2005] GOOD PRACTICE GUIDES Sexual Orientation Discrimination in Northern Ireland The Law and Good Practice [2004] Age Discrimination in Northern Ireland - The Law and Good Practise for Employers [2006] OTHER MATERIALS Employers should have regard to a publication from the Home Office; namely, Code of Practice for all employers on the avoidance of race discrimination in recruitment while seeking to prevent illegal working. 17

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20 CONTACTING THE EQUALITY COMMISSION If you need help or advice or would like to find out more about the Equality Commission and its work, contact us at- The Equality Commission for Northern Ireland Equality House 7 9 Shaftesbury Square Belfast BT7 2DP Telephone: (028) Fax: (028) Textphone: (028) information@equalityni.org Website: This publication is available on request in a range of formats, such as large print, Braille, CD-ROM. It may also be downloaded from the Equality Commission s website.