Member Article

"Firms have a duty to hire Britons" - what are the employer implications?

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 stand to get a significant return on their investment.

His controversial comments are reminiscent of Gordon Brown’s 2007 call for “British jobs for British workers” — and sparked similarly fierce debate. Surely such an approach amounts to discrimination? Or is it time for UK employers 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 should employers do? Can recruitment processes be tweaked to boost local employment without falling foul of the law? And should they be?

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 UK’s migrant workforce. The 30 per cent of migrant workers who hail from beyond the EU cannot 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). Advertising roles exclusively for EU nationals could amount to race discrimination. Employers could potentially justify such a move if they can show it to be a proportionate means of achieving a legitimate aim, but case law in this area is limited — so it is a risky measure.

The Government is in the process of expanding its apprenticeship scheme and launching a traineeship scheme, both of which are available to people living in England only, so businesses are being given more incentive to recruit locally. But beyond initiatives of this kind, there is little that employers can do within the bounds of the law to reduce their reliance on migrant workers. It falls to the Government to provide adequate immigration controls and systems of education and training to support the “local young people” they are supposedly campaigning for.

Natasha Chell, Partner, Laura Devine Solicitors

This was posted in Bdaily's Members' News section by Natasha Chell .