Is this direct racial Discrimination?

[georgejoseph1981]

Hello Everyone,

 

My wife was interviewed for a permanent post in 2007,along with other candidates. After 2 rounds she was selected for the post. On understanding that she had a work permit, they granted her a fixed term contract instead of the permanent job - with the end date set of the contract set to be the last working friday before the end date of the visa. In 2007 promises were made verbally and by email that the contract would be extended based on the lebgth of the new visa.

 

Cutting matters short, when she asked for a new contract as per the new length of the visa(3 years) - she was given only 3 months extension. They tried to terminate her and issued her notice and revoked it(Thank GOD!). In the email which mentioned revocation of notice - she was issued a warning that now she would be considered for redundancy.

 

Does all this constitute direct racial discrimination or indirect racial discrimination - since quite obviously the visa and the fact that she is a non EEA national has contributed to this successive redundancy process.

[becka]

I would say that it is probably more something to do with our failing economy that she may be facing redundancy

 

It's happening to lots of us at the moment and has nothing to do with where you are from or what you do

[PGH7447]

Hello Everyone,

 

Does all this constitute direct racial discrimination or indirect racial discrimination - since quite obviously the visa and the fact that she is a non EEA national has contributed to this successive redundancy process. Why?

 

No offense but why would you see this as racist? as Becka states in this economy losing a job is easier than keeping one regardless of race colour or creed

[georgejoseph1981]

Well the fact is that the company is not making permanent employees redundant.Agency workers are also not being let go. The company is also doing better than the last year i,e; they are profitable.

 

The reason I called it racist discrimination based on nationality is only because had she been a British/EEA national , she would have been able to get a permanent job instead of a fixed term. Being on the fixed term contract has been the cause of all the issues so far.

 

So, do you feel the fact that she is less favourably treated due to her nationality ,leading to a fixed term contract and hence all the pain of termination and a lot of other ambiguties.

[PGH7447]

I dont know who she works for but I do Know that in my place of work all contractors are being told their contracts wil be terminated after there contract expires, and I would also sy that we are doing well, it is just a sign of the times I'm afraid.

[elche]

Is the primary reason for this dismissal not the termination of a fixed term contract i.e. reaching a moment in time where the date set has been reached, or the specific event has occured (e.g. completion of a project, return of perrmanent post holder) Thus the contract is completed.

 

A 'fair procedure' should still be followed, especially where the employee has over one years service.

 

Have any other FT employees not had their contracts renewed?

 

In addition is it only non-eea nationals who work under FT contracts?

 

Che

[georgejoseph1981]

Is the primary reason for this dismissal not the termination of a fixed term contract i.e. reaching a moment in time where the date set has been reached, or the specific event has occured (e.g. completion of a project, return of perrmanent post holder) Thus the contract is completed.

 

A 'fair procedure' should still be followed, especially where the employee has over one years service.

 

Have any other FT employees not had their contracts renewed?

 

In addition is it only non-eea nationals who work under FT contracts?

 

Che

 

Hello Che,

 

Thanks for the response. The reason she is on a fixed term contract is only due to her visa i,e; she was given a fixed term contract only due to the fact that she was a NON EEA national - she needed a work permit to work in the UK . Instead of giving her the permanent job she was entitled to , she was given a fixed term contract, set to expire 1 week before the work permit expired. As per the agreement we had with them in 2007 - the contract would be extended to the new term of the visa - no matters of availability of work or funds were made known then. But now they are treating her like a FT employee and have called her for redundancy. I hope the explanation gives a good idea of what has happenned - the fact that she was made fixed term due to her visa and consecutively she underwent a lot of problems with regards to redundancy - can that be classified as direct racial discrimination?

 

There are limited FT employees, my understanding is that all those FTs have an actual business objective for being made fixed term .

Edited June 23, 2009 by georgejoseph1981

[patdavies]

The reason she is on a fixed term contract is only due to her visa i,e; she was given a fixed term contract only due to the fact that she was an EEA national - she needed a work permit to work in the UK .

 

 

Sorry, simply not so. Any EEA national has the right to work in the UK without a work permit.

 

Freedom of movement of labour within the EU (that has been extended to EEA and Switzerland) lies at the heart of this.

[georgejoseph1981]

Sorry, simply not so. Any EEA national has the right to work in the UK without a work permit.

 

Freedom of movement of labour within the EU (that has been extended to EEA and Switzerland) lies at the heart of this.

 

Sorry I forgot to say she is Indian - she is a NON EEA national. Sorry about that.

[becka]

I still feel you are trying to pull the racism card when there is no cause

 

your wife required a visa to work here so was offered a fixed term contract to such a point as the visa expired. Some companies have a policy that people who have/require visas and work permits that have expiry dates are not entitled to permanent positions as the company can be held culpable if somebody overstays their visa "because they have a job that they can't leave"

 

We have had an economic downturn and even the most profitable companies are cutting costs and filling the sandbags as the downturn is likely to continue.

 

The one place most people are looking is at staffing levels. this couldn't have been predicted 2 years ago when the initial contract was agreed

 

Unless your wife has experienced any direct racial attacks I don't think you can say the fact they have chosen not to renew a fixed term contract is racist

 

Even if she were permanent her role may well be facing redundancy

[georgejoseph1981]

I still feel you are trying to pull the racism card when there is no cause

 

your wife required a visa to work here so was offered a fixed term contract to such a point as the visa expired. Some companies have a policy that people who have/require visas and work permits that have expiry dates are not entitled to permanent positions as the company can be held culpable if somebody overstays their visa "because they have a job that they can't leave"

 

We have had an economic downturn and even the most profitable companies are cutting costs and filling the sandbags as the downturn is likely to continue.

 

The one place most people are looking is at staffing levels. this couldn't have been predicted 2 years ago when the initial contract was agreed

 

Unless your wife has experienced any direct racial attacks I don't think you can say the fact they have chosen not to renew a fixed term contract is racist

 

Even if she were permanent her role may well be facing redundancy

 

 

Hi, I havent pulled the racism card unneccessarily. By law, issuing a fixed term contract is justified only if a fixed term activity or fixed project funding is the reason - so when the fixed term activity expires or the funding dries up , non-renewal is possible.

 

In my wife's case there was no business justification , just the visa. Had the visa been an issue, they could have used an auto termination clause to terminate the job anways, instead of using a fixed term contract , Notice and the rest of it would be issued anyways like normal.

 

The actual problem is that the company itself forgot that had it not been for the visa she would be permanent - which would mean totally different work planning measures for her. Since they forgot the permanent job she was entilted to and considered her only as a fixed term employee - they thought they could get rid of her...please also remember that while they tried to get rid of her, agency contractors still continued and continue to work in her previous and present teams.

 

I believe all this is because of the fixed term contract and hence the visa - showing direct racial discrimination.

 

I hope the matter is clear now.

[georgejoseph1981]

Some companies have a policy that people who have/require visas and work permits that have expiry dates are not entitled to permanent positions as the company can be held culpable if somebody overstays their visa "because they have a job that they can't leave"

 

 

If such policies exist the companies should take a lot more extra care to ensure discrimination does not happen in any way. Scrupulous companies use all these loop holes only to get the better of people.

 

For reference , you could take a look at the link below: the plight of a company which denied training , just because they have to file for work permits for non EEA nationals - the tribunal ruled that what they had done was an act of indirect racial discrimination.

 

As such, as per law, it does not matter whether racial discrimination was knowingly or unknowlingly done, what only matters is that , racial discrminiation did in fact happen.

 

Osborne Clarke Services v. Purohit [2009] UKEAT 0305_08_0902 (9 February 2009)

[becka]

You are therefore saying that only non-whites (i.e. of a different race) require visas

 

To test whether it would be racial discrimination ask yourself "if somebody of the same race had required a visa would they be in the same position"

 

For example - had the job been given to a white Australian which then was brought to a close because the visa had expired and they could not justify the business requirement for that person to continue in employment - would you consider that to be racism? Or unfortunate in the current economy?

[patdavies]

By law, issuing a fixed term contract is justified only if a fixed term activity or fixed project funding is the reason - so when the fixed term activity expires or the funding dries up , non-renewal is possible.

 

 

I think that you are working from a false premise here.

 

Fixed term contracts can exist for many business reasons other than those you mention - maternity cover is just one example.

 

I think it entirely reasonable for an employer to limit the term of an employment contract by virtue of a limitation in the right to work.

 

And as posted above, it is not racist as the same would presumably apply to anybody on a work permit/visa regardless of race.

[georgejoseph1981]

You are therefore saying that only non-whites (i.e. of a different race) require visas

 

To test whether it would be racial discrimination ask yourself "if somebody of the same race had required a visa would they be in the same position"

 

For example - had the job been given to a white Australian which then was brought to a close because the visa had expired and they could not justify the business requirement for that person to continue in employment - would you consider that to be racism? Or unfortunate in the current economy?

Hi I get what you are saying - and I do agree that an australian in a similar situation would face the same problem - the racial discrmination in this is referred to as racial discrmination based on nationality. If redundancies are happening all across the board there is no case for racial discrimination based on nationality, but in my wife's case permanent British/EEA nationals continue to work and so do agency workers- the company does not even seem to have followed normal procedures to reduce temorary manpower before doing fixed term based redudnancies.

Edited June 23, 2009 by georgejoseph1981

[georgejoseph1981]

I think that you are working from a false premise here.

 

Fixed term contracts can exist for many business reasons other than those you mention - maternity cover is just one example.

 

I think it entirely reasonable for an employer to limit the term of an employment contract by virtue of a limitation in the right to work.

 

And as posted above, it is not racist as the same would presumably apply to anybody on a work permit/visa regardless of race.

Hi,

Thanks for the response..yes maternity cover is a reason for a fixed term , but not visa.I was referring to racial discrminination based on nationality.

Edited June 23, 2009 by georgejoseph1981

[becka]

But racial discrimination is not based on nationality

 

It is based on Race.

 

Requirements for a visa are not based on Race they are based on nationality

 

Personally I really think you are barking up the wrong tree but would advise anybody to get specific legal advice if they feel they have experienced discrimination of any kind. Do you have legal cover on any insurance policies? Or alternatively have you spoken to ACAS who may be able to help

[borisbeaver]

I have been on fixed term contracts myself and in some cases they were extended and in some cases they weren't.

 

Pat Mentioned maternity cover. It also occurs in IT contracting and seasonal work. Also, the NHS offers fix term contracts to non EU nationals. There is no guarantee of an extension, even for highly trained medical staff.

 

What can happen, is a promise of an extension, but when the powers that be look at the budget sheet, they find they cannot justify it, therefore, it doesn't get extended. This is perfectly legal and must be taken into consideration when be offered a fixed term contract. The question you should ask you self is, "What will happen if I don't get a renewal or extension?"

[georgejoseph1981]

But racial discrimination is not based on nationality

 

It is based on Race.

 

Requirements for a visa are not based on Race they are based on nationality

 

Personally I really think you are barking up the wrong tree but would advise anybody to get specific legal advice if they feel they have experienced discrimination of any kind. Do you have legal cover on any insurance policies? Or alternatively have you spoken to ACAS who may be able to help

 

As per direct.gov.uk

 

The 1976 Race Relations Act makes it unlawful for an employer to discriminate against you on racial grounds. Race includes:

 

• colour
  
• nationality
  
• ethnic or national origins
  

Legal Advice so far and also the emails we have from the company have agreed to less favourable treatment. I have legal cover from Halifax - DAS legal I think.

 

Visas are the responsbility of the home office not the employer.

Edited June 23, 2009 by georgejoseph1981

[madari]

Race discrimination cases are not easy to win contrary to popular belief,I personally dont think there are any grounds of race discrimination.

 

At the end of the day no employer is under any obligation to employ anybody regardless of race,colour or geder.

[georgejoseph1981]

I have been on fixed term contracts myself and in some cases they were extended and in some cases they weren't.

 

Pat Mentioned maternity cover. It also occurs in IT contracting and seasonal work. Also, the NHS offers fix term contracts to non EU nationals. There is no guarantee of an extension, even for highly trained medical staff.

 

What can happen, is a promise of an extension, but when the powers that be look at the budget sheet, they find they cannot justify it, therefore, it doesn't get extended. This is perfectly legal and must be taken into consideration when be offered a fixed term contract. The question you should ask you self is, "What will happen if I don't get a renewal or extension?"

 

If they look at the budget sheet and find that a fixed term cannot be renewed , they cannot throw anyone out - there is a law Fixed Term Employees(Less Favorable Treatment) 2002, if you take a read you will understand that it is unfair to not renew a fixed term contract - just because they are fixed term.

[flipper79]

I've done a bit of research and I think you may have misunderstood the 2002 legislation (although I'm the first to point out that I could equally be misunderstanding).

 

Yes, when you say they can't treat a person on a fixed term contract less favourable than one on a permanent you are correct. But this doesn't relate to extending the contract, rather it means that you couldn't, as an example, pay someone doing the same job differently.

 

A fixed term contract need only be made permanent when the employee has secured two or more fixed term contracts with over 4 years service. I'm sorry to be the potential bearer of bad news but it looks as if they may well be within their rights.

[georgejoseph1981]

I've done a bit of research and I think you may have misunderstood the 2002 legislation (although I'm the first to point out that I could equally be misunderstanding).

 

Yes, when you say they can't treat a person on a fixed term contract less favourable than one on a permanent you are correct. But this doesn't relate to extending the contract, rather it means that you couldn't, as an example, pay someone doing the same job differently.

 

A fixed term contract need only be made permanent when the employee has secured two or more fixed term contracts with over 4 years service. I'm sorry to be the potential bearer of bad news but it looks as if they may well be within their rights.

 

Non renewal of a fixed term contract after 1 year continuous service is considered a dismissal. You are not the bearer of bad news ..

[callumsgran]

I have legal cover from Halifax - DAS legal I think.

 

Best of luck mate, they are sh1te!!!!!

[elche]

Hi george

 

If you have legal expense cover then you should attempt to utilise this.

 

I thought it might be good to go back to basics.

 

There are 4 types of discrim, but for the purposes of this answer let's look at Direct and Indirect Race Discrim.

 

Direct discrimination is treating someone less favourably than another on the grounds of race, national or ethnic origins, colour or nationality. A comparison must be drawn between the claimant and a comparator.

 

Indirect discrimination is when an employer applies a provision, criterion or practice (PCP) to a group including the claimant which places those within that group who share a characteristic (eg race) with the claimant at a particular disadvantage compared to those who do not. An employer may escape liability if it can show that imposing the PCP was 'a proportionate means of achieving a legitimate aim'.

 

Thus looking at DD - is the offer of the FT contract not 'based' on the fact that the applicant had immigration limited leave to work in the UK?

 

If so, this is not based on her race, national or ethnic origins, colour or nationality.

 

I appreciate that immigration status is linked to race, national or ethnic origins, colour or nationality, BUT this treatment would have applied to various nationalities, ethnic groups, races etc e.g. an applicant from Bolivia, an applicant from Libya etc etc.....

 

Thus in my opinion as no 'one specific group based on race, national or ethnic origins, colour or nationality is targeted by this policy, then I believe it could be justified vis a vis the RRA 1976.

 

 

As regards ID, I would argue the above, plus the fact that this is a proportionate means of achieving a legitimate aim.

 

 

Good look with DAS though, I hope for your sake I'm wrong, but the above would be my defence if I were the employer.

 

 

Che