'Employment status' discrimination

Posted: 10th November 2016

EATDiscrimination in the workplace comes in many guises, not all of which are obvious at first sight. In one case, an Employment Tribunal (ET) identified an unusual example in the form of a policy that resulted in workers who were perceived as having uncertain immigration status being paid less than their peers.

The case concerned an Indian national who had obtained employment with a British engineering firm. His position had been advertised as paying at least £30,000 a year, but he received £5,000 less than that. The reduction was due to what was euphemistically referred to as his ‘employment status’. That was in fact a reference to his immigration status, which the firm viewed as insecure.

After the man complained, the ET found that he had been placed at a disadvantage due to his non-British nationality and that his treatment amounted to indirect race discrimination. The firm did not challenge those findings before the Employment Appeal Tribunal (EAT).

However, it did argue that the man’s claim should have been struck out, having been brought too late. It was submitted that his pay was increased to the same level as other employees once his immigration status became more secure and that he had thereafter delayed beyond the statutory time limit before lodging his claim.

In rejecting those arguments, however, the EAT noted that the firm had strung him along with unfulfilled assurances that the shortfall in his pay would in due course be made up to him. That was a continuing act of discrimination and his claim had thus been made in time.