Foreign workers 2: unfair dismissal, discrimination and illegal working
An outline of the rights of foreign nationals not to be unfairly dismissed and not to suffer unlawful discrimination on grounds of nationality, and a guide to the new offence of employing illegal workers
In our Guidance Note Foreign workers 1: immigration and employment, we examined the rights of different categories of foreign nationals to live and work in the UK. In this article, we look at their rights to complain of unfair dismissal to an industrial tribunal and not to be discriminated against by employers on grounds of nationality. We go on to consider s.8 of the Asylum and Immigration Act 1996, which makes it a criminal offence for an employer to employ a person aged 16 or over who does not have permission to live or work in the UK.
The Home Office's guidance for employers1 concerning s.8 says that the number of people detected by the Immigration Service working either while here illegally or while prohibited from working has risen significantly in recent years, from fewer than 4,000 in 1988 to over 10,000 in 1995. The new offence was created "to encourage employers to consider applicants' eligibility to work in the United Kingdom". But, according to the guidance: "This does not mean that employers will be expected to act as immigration officers." It is not clear whether the new Labour Government will seek to amend or repeal s.8.
UNFAIR DISMISSAL
Like British citizens, foreign nationals have the right to complain of unfair dismissal to an industrial tribunal if they were "dismissed", in any of the circumstances described in s.95 of the Employment Rights Act 1996 (the ERA). They must, however, have been continuously employed under a "legal" contract of employment or apprenticeship for a period of at least two years ending with the "effective date of termination", within the meaning of s.97 of the ERA (except where that qualifying period is not applicable - see s.108(3) of the ERA). They must also have been under their normal retiring age or, if they did not have one, 65 (except where that upper age limit does not apply - see s.109(2) of the ERA).
Illegality and continuity
A contract of employment or apprenticeship which is expressly or impliedly prohibited by statute, such as one prohibited by s.8 of the Asylum and Immigration Act 1996, is "illegal" (that is, void and unenforceable by either party). So is one which is entered into with the object of committing an illegal act. If, for example, a foreign national were found, when he or she entered into a contract of employment, knowingly to be in breach of a condition attached to his or her leave which precluded him or her from taking the employment (which is an offence under s.24 of the Immigration Act 1971), the contract would be illegal from its inception (Sharma v Hindu Temple and others).
If a contract of employment or apprenticeship is an illegal one and for a period of time is such as to affect the statutory continuity of employment, then for that period the contract cannot be relied on and the necessary continuity of legal employment is not established. In Bamgbose v Royal Star and Garter Home, a Nigerian national entered into a contract of employment with a nursing home in the knowledge that he was not permitted to work in the UK. By working, he knowingly failed to observe a condition attached to his leave to enter prohibiting him from taking any employment. Further, he had no right to stay in the UK at all until he was given leave to remain 14 months later. He was dismissed less than two years later still, and complained of unfair dismissal to an industrial tribunal. The tribunal dismissed his complaint because he had not been continuously employed for at least two years. It found that the contract was entered into with the deliberate intention of breaking the law, and that the contract became enforceable only once he had been given leave to remain. He appealed to the EAT, but to no avail.
Another point to note is that a period of employment abroad may count towards a foreign employee's period of continuous employment. Where a foreign employee of an overseas employer is taken into the employment of a UK employer which, at the time he or she starts working for it, is an "associated employer" of the overseas employer: (a) his or her period of employment at that time counts as a period of employment with the UK employer; and (b) the change of employer does not break the continuity of the period of employment (s.218(6) of the ERA). Any two employers are "associated" if one is a company of which the other (directly or indirectly) has control, or both are companies controlled (directly or indirectly) by the same third party (s.231 of the ERA).
Fairness
The dismissal of a foreign employee will be unfair if the employer fails to show what was the sole or main reason for the dismissal and that this was a "potentially fair" reason, or if the employer shows such a reason but the tribunal finds that the employer "acted unreasonably" in treating it as a sufficient reason for dismissing the employee (s.98(1) and (4) of the ERA).
One of the potentially fair reasons is "that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment" (s.98(2)(d) of the ERA). The dismissal of a foreign employee because, for example, the Department for Education and Employment refused to extend his or her work permit would therefore be potentially fair.
A genuine but mistaken belief by the employer that its continued employment of the employee would contravene a statutory duty or restriction could also be a potentially fair reason for dismissing him or her, namely "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held", or "SOSR" (s.98(1) (b) of the ERA).
In Bouchaala v Trust House Forte Hotels Ltd, THF dismissed a Tunisian employee following advice from the Department of Employment that it would be illegal to continue to employ him without a work permit, for which he did not qualify. In fact, he had been given indefinite leave to remain by the Home Office and, therefore, did not need a work permit. He complained of unfair dismissal to an industrial tribunal, which concluded that the reason for the dismissal came within (what is now) s.98(2)(d) of the ERA. On appeal, the EAT held that the tribunal had got it wrong but that "a genuine belief by an employer that it is impossible to continue the employment of an employee because there is an enactment prohibiting further lawful employment of that employee can constitute 'some other substantial reason' within the terms of [s.98(1)(b)]."
Where the employer shows the reason for the dismissal and that this was contravention of a statutory duty or restriction or SOSR, the dismissal will not be automatically fair. The employer must also have "acted reasonably" by, for example, discussing the matter with the employee, the Home Office and/or the Department for Education and Employment to see if there was any way the employee could legally carry on working; or by offering reinstatement (if this was reasonably practicable) or alternative employment (if any was available) to the employee after realising its mistake.
In Myeza v Avon Area Health Authority (Teaching), an industrial tribunal found that the dismissal of a Swazi national employed by the authority was unfair. The reason for the dismissal was that those responsible had formed the genuine but erroneous opinion that it would be illegal to continue to employ her. But this opinion was formed much too hastily, on the strength of what had been said on the telephone by an anonymous caller from the Home Office and of the views expressed, also over the telephone, by a caller from the Department of Employment who was standing in for someone else.
The tribunal also thought that, before the decision was taken to give the employee notice, the matter should have been considered at a higher level and legal advice should have been taken. Furthermore, when the employee was still under notice, the Home Office had informed the authority that she would not be required to leave the UK until it had reviewed her immigration status in the light of new evidence which it had received.
Unlawful discrimination
The Race Relations Act 1976 (the RRA) outlaws discrimination on racial grounds (including nationality) by employers against foreign nationals applying for jobs with, or employed by, them in Great Britain in specified circumstances. The Race Relations (Northern Ireland) Order 19972 will, once it comes into operation later this year, give virtually identical protection to foreign nationals applying for jobs with, or employed by, employers in Northern Ireland. Community law also prohibits certain forms of discrimination based on nationality by employers against EEA migrant workers and members of their family in the UK.
The RRA
Under s.1(1) of the RRA: (a) a person "directly" discriminates against another if he or she treats that other less favourably on "racial grounds" than he or she treats or would treat other people; and (b) a person "indirectly" discriminates against another by applying to him or her a requirement or condition (such as a length of residence or linguistic knowledge requirement) which is or would be equally applicable to people of a different "racial group" but which has a disproportionate adverse impact on people of the same racial group as him or her, is to his or her detriment, and cannot be justified on non-racial grounds. Discrimination may also be "by way of victimisation" within the meaning of s.2 of the RRA.
On "racial grounds" means on grounds of colour, race, nationality or ethnic or national origins (s.3(1)). "Nationality" includes citizenship (s.78(1)), while "national origins" denotes a particular place or country of origin (Tejani v Superintendent Registrar for the District of Peterborough). "Racial group" means a group of persons defined by reference to one of the "racial grounds", and references to a person's racial group refer to any racial group into which he or she falls (s.3(1)). The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of the RRA (Orphanos v Queen Mary College). But a comparison of the case of a particular racial group with that of a person not of that group under s.1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other (s.3(4)).
Checking eligibility to work
In Dhatt v McDonalds Hamburgers Ltd, an Indian national with indefinite leave to enter applied for a job at a McDonalds restaurant. The application form contained a question which British citizens and other EC nationals were not required to answer. This asked whether the applicant had a "permit to work in Britain" and, if so, to provide evidence of this. Mr Dhatt answered "yes" to the question and explained that he did not need a work permit. He then started work. A few days later, however, he was suspended until he provided documentary proof of his right to work in the UK. He then produced his passport, but this was not acceptable to the management and he was dismissed.
Mr Dhatt complained of unlawful race discrimination to an industrial tribunal. It dismissed the complaint and, having appealed unsuccessfully to the EAT, he appealed to the Court of Appeal. He argued that his treatment as an Indian national had to be compared with that of all other applicants for jobs in McDonalds restaurants who were not Indian nationals, including British citizens and other EC nationals.
The Court held that the need to have either a work permit or indefinite leave to enter was a relevant circumstance in this case. The proper comparison under s.3(4) of the RRA was therefore between Mr Dhatt and others who, although not Indian nationals, were also neither British citizens nor other EC nationals. According to the Court, the relevant circumstances were then the same: all required either a work permit or indefinite leave to enter; and all were treated alike by the question on the application form3.
Lord Justice Staughton said: "It is true that this approach treats nationality as a relevant circumstance, and that nationality is itself discriminatory in racial terms. But it is discrimination which has been sanctioned, if not actually enjoined upon employers, by statute." Lord Justice Neill said: "It is true that there is no express obligation imposed by statute on an employer to ensure that applicants for work are free to do so. But an employer has a general responsibility to ensure that those who work in his business comply with the law ... In the case of someone seeking work, his nationality is a relevant circumstance because Parliament itself recognises and seeks to enforce by reference to nationality a general division between those who by reason of their nationality are free to work and those who require permission."
It is still not compulsory for employers to check job applicants' eligibility to work in the UK, but if they choose not to do so they will have no defence under s.8 of the Asylum and Immigration Act 1996 (see pp.6-7 below). If employers refuse to consider for a job applicants who look or sound foreign (or whose names are foreign), or only carry out checks on them, this is likely to be discrimination contrary to the RRA.
In Karimjee v University of Newcastle-upon-Tyne, the university advertised a vacancy for a research associate for which only Ms Karimjee and a Mr Bayer applied. He was the successful applicant, but he resigned shortly after taking up the post. Rather than re-advertise the post, the university decided to offer it to Ms Karimjee. Her offer letter was identical to the one which the university had written to Mr Bayer other than in one respect. She was told that the offer was subject to her providing documentary evidence of her right to live and work in the UK. She wrote back to the university pointing out that she had in fact been a British citizen since birth. She also accepted its offer, but objected to providing the proof which it had asked her for.
After receiving confirmation of Ms Karimjee's immigration status from the Home Office, the university put her on the payroll. But she resigned and complained to an industrial tribunal that the university had discriminated against her on grounds of nationality contrary to the RRA. The tribunal found in her favour but dismissed her complaint because it was out of time. She then appealed to the EAT. It dismissed the appeal but said that she had "the clear verdict of an industrial tribunal that it is discriminatory to demand proof of work entitlement of some people without making the same demand of others".
Unlawful race discrimination
Subject to certain exceptions (the most relevant of which, for present purposes, are set out below), s.4(1) of the RRA outlaws discrimination by an employer against a foreign national seeking employment with it at an establishment in Great Britain:
(a)in its recruitment and selection arrangements;
(b)in the terms on which it offers him or her the employment; or
(c)by refusing or deliberately omitting to offer him or her the employment.
Subject to the same exceptions, s.4(2) of the RRA outlaws discrimination by an employer against a foreign national employed by it at an establishment in Great Britain:
(a)in his or her terms of employment;
(b)in the way it affords him or her access to promotion, transfer or training opportunities, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him or her access to them; or
(c)by dismissing him or her, or putting him or her at some other disadvantage.
"Employment" means employment under a contract of employment or apprenticeship or "a contract personally to execute any work or labour" (s.78(1)), whether the contract is legal or not4 (Leighton v Michael and Charalambous). It is also unlawful, subject to certain exceptions, for an employer to discriminate against foreign "contract workers" within the meaning of, and in the circumstances specified in, s.7.
Section 4(3) of the RRA excuses discrimination other than by way of victimisation, in the circumstances specified in s.4(1) and (2), against foreign nationals seeking employment or already employed in a private household (such as "au pairs"); and s.6 allows an employer to discriminate in favour of an employee not ordinarily resident in Great Britain where the purpose of the employment is to provide the employee with training in skills which he or she intends to exercise wholly outside Great Britain.
Section 75(5) legitimises rules restricting employment in the service of the Crown or by the public bodies prescribed by the Race Relations (Prescribed Public Bodies) (No.2) Regulations 19945 (including the Bank of England, the British Council and both Houses of Parliament) to persons of particular birth, nationality, descent or residence. But, in the event of a conflict between s.75(5) and the public service exception to article 28 of the Agreement on the European Economic Area (see Foreign workers 1: immigration and employment ), the latter will prevail.
Section 41(1) excuses any act of discrimination done under statutory authority. Section 41(2) also excuses discrimination based on a person's nationality or place of ordinary residence, or the length of time for which he or she has been present or resident in a particular place, which is in pursuance of any "arrangements" made or approved by a minister or the aim of which is to comply with any "condition" imposed by a minister. An employer may therefore, without contravening the RRA, refuse to engage someone who is prohibited from working in Great Britain, and is lawfully entitled to ask job applicants whether they are free to take the employment in question. It follows that there would have been no case for the employer to answer in Dhatt (see above) had all job applicants, whatever their nationality, been asked a question like "is there any restriction on your right to work?"
Community law
Under article 28(2) of the EEA Agreement, freedom of movement for EEA migrant workers within the UK entails the abolition of any discrimination based on nationality between them and British workers as regards employment, remuneration and other conditions of work and employment. Article 28(2), which has direct effect, aims to eliminate in UK legislation provisions as regards those matters under which an EEA migrant worker is subject to more severe treatment, or is placed in an unfavourable position in law or in fact, as compared with the situation of a UK national in the same circumstances. Article 28(2) does not apply to "employment in the public service", and it is subject to "limitations justified on grounds of public policy, public security or public health" (see Foreign workers 1: immigration and employment ).
EEA migrant workers and members of their families have the same right to complain of unlawful race discrimination to an industrial tribunal as all other foreign nationals. However, on such a complaint by an EEA migrant worker or family member, the tribunal would have to interpret the RRA (insofar as it outlaws and excuses discrimination on grounds of nationality) as far as possible in the light of the wording and purpose of article 28(2) and EEC Regulation No. 1612/68 in order to achieve the result pursued by the latter. The tribunal would also have to disapply any provision of the RRA which conflicts with Community law.
Access to employment
EEC Regulation No.1612/68 clarifies and gives effect to article 28(2), and also has direct effect. It gives EEA nationals the right to take up available employment in the UK with the same priority as UK nationals. EEA nationals and UK employers may exchange their respective applications for and offers of employment, and may enter into and perform contracts of employment, without any resulting discrimination. Further, any provision of a collective agreement or contract of employment concerning eligibility for employment, employment, remuneration and other conditions of work or dismissal will be null and void in so far as it lays down or authorises discriminatory conditions in respect of EEA migrant workers.
Offers of employment made to EEA migrant workers, or to their spouses or children who are under 21 or dependent on them (Gül v Regierungspräsident Düsseldorf), may not be subject to conditions not applicable to UK nationals, although conditions relating to linguistic knowledge may be justified by the nature of a particular job. Such offers of employment may also be conditional on taking a vocational test.
EEC Directive No.89/48 applies to any EEA national wishing to pursue a "regulated profession" in the UK as an employed person, but does not apply to professions which are the subject of a separate Directive establishing arrangements for the mutual recognition of diplomas6. In the absence of harmonisation of the conditions of access to a particular profession as an employed person, the professional body may lay down the knowledge and qualifications needed to pursue it and require the production of a diploma certifying that the holder has the relevant knowledge and qualifications (Union Nationale des Entraîneurs et Cadres Techniques Professionnels du Football v Heylens).
Where access to a profession depends on the possession of such knowledge and qualifications, the professional body must examine to what extent the knowledge and qualifications certified by a foreign diploma correspond to them. If they do correspond, the professional body must recognise the foreign diploma as equivalent. If they correspond only partially, it may require the person concerned to prove that he or she has the knowledge and qualifications which are lacking. In this regard, it must assess whether knowledge acquired in the UK, either during a course of study or by way of practical experience, is sufficient. If completion of a period of preparation or training for entry into a profession is required, it must also determine whether professional experience acquired in the country of origin or in the UK may be regarded as satisfying that requirement in full or in part (Vlassopoulou v Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg).
The assessment of the equivalence of a foreign diploma must be carried out exclusively in the light of the knowledge and qualifications which its holder can be assumed to possess in the light of that diploma, having regard to the nature and duration of the studies and practical training to which it relates. Where access to a profession depends on the possession of a national diploma or a foreign diploma recognised as its equivalent, it must be possible for a decision refusing to recognise the equivalence of a foreign diploma to be subject to judicial review, and for the person concerned to find out the reasons for the decision (Heylens).
Working conditions
EEC Regulation No.1612/68 also provides that EEA migrant workers employed in the UK may not be treated differently from British workers because of their nationality in respect of any "conditions of employment and work" (which include statutory employment protection rights), in particular as regards remuneration, dismissal, and should they become unemployed, reinstatement or re-employment. They must enjoy the same "social and tax advantages" (see below) as British workers, and they must have access to vocational training and retraining by virtue of the same right and under the same conditions as British workers.
They must also enjoy "equality of treatment as regards membership of trade unions and the exercise of rights attaching thereto, including the right to vote and to be eligible for the administrative or management posts of a trade union"; and they must have "the right of eligibility for workers' representative bodies in the undertaking". The exercise of those trade union rights extends beyond the bounds of "trade unions" in the strict sense and includes, in particular, the participation of workers in bodies which, while not being in law trade unions, perform similar functions as regards the defence and representation of workers' interests (ASTI v Chambre des Employés Privés).
"Social advantages" are "all those which, whether or not linked to a contract of employment, are generally granted to [British] workers primarily because of their objective status as workers or by virtue of the mere fact of their residence [in the UK] and the extension of which to workers who are [EEA nationals] therefore seems suitable to facilitate their mobility within [the UK]" (Ministère Public v Even). These therefore include state benefits, whether they are granted as of right or on a discretionary basis.
Forms of discrimination
Discrimination prohibited by Community law can arise only through the application of different rules to comparable situations or the application of the same rule to different situations (Finanzamt Köln-Altstadt v Schumacker). Article 28(2) of the EEA Agreement and EEC Regulation No.1612/68 prohibit not only overt (or "direct") discrimination (that is, different treatment on the ground of nationality) but also all covert (or "indirect") forms of discrimination which, by the application of other distinguishing criteria (such as length of residence), lead in fact to the same result (Sotgiu v Deutsche Bundespost).
Unless objectively justified and proportionate to their aim, such criteria must be regarded as indirectly discriminatory if, although applicable irrespective of nationality, they are intrinsically liable to affect EEA migrant workers more than British workers and there is a consequent risk that they will place the former at a particular disadvantage. It is not necessary to find that the criteria do in practice affect a substantially higher proportion of EEA migrant workers. It is sufficient that they are liable to have such an effect (O'Flynn v Adjudication Officer).
Article 28(2) also prohibits rules which constitute obstacles to freedom of movement for workers, unless they pursue a legitimate aim compatible with Community law, are justified by pressing reasons of public interest, and their application ensures that the aim is attained and does not go beyond what is necessary to attain it (Union Royale Belge des Sociétés de Football Association ASBL and others v Bosman and others).
ILLEGAL WORKING
Section 8 of the Asylum and Immigration Act 1996, which came into force on 27 January 1997, makes it an offence for an employer to employ7 in the UK a person aged 16 or over who is subject to immigration control if (a) that person ("the employee") has not been given leave to enter or remain; or (b) his or her leave is not valid and subsisting, or is subject to a condition precluding him or her from taking the employment. The offence is, however, subject to three exceptions8:
An employer will be liable to pay a fine not exceeding level 5 on the standard scale (currently £5,000) in respect of each offence with which it is charged and convicted. The court will set the fine, taking account of the seriousness of a particular offence and the employer's financial circumstances.
Where an offence is committed by a company, any director, manager, secretary or other similar officer of the company (or any person who was purporting to act in such a capacity) will be jointly liable if the offence was committed with their consent or connivance, or was attributable to any neglect on their part.
Employer's defence
It is a defence for an employer to show that, before the employment began: (a) it was shown a document which appeared to relate to the employee and to be the original of one of those described in the box above; and (b) it kept or photocopied that document or scanned the document into a computer database using "Write Once Read Many" (WORM) technology, unless it knew at the time that the employment would constitute an offence under s.8.
Keeping a document will normally only be appropriate in the case of part 2 of a P45, which employers are obliged to keep for at least three years. So far as copying or scanning is concerned, in most cases the employer must copy or scan the whole document. In the case of a passport or travel document, however, the employer need only copy or scan the front cover, the pages containing the holder's personal details (including nationality), the page containing his or her photograph or signature, and the pages with the endorsements showing that he or she is currently permitted to work in the UK.
According to the Home Office's guidance for employers1, the employer should keep a copy document for the duration of the employee's employment and for at least six months after it ends. If an original or copy document goes missing or is destroyed, evidence about the employer's normal recruitment procedures might point to the fact that the document was in fact kept or copied.
Whether a document appears to relate to the employee is a matter for the employer's judgment. It may obviously do so if it includes a photograph of the employee. Otherwise, the employer may wish to consider whether the information in the document "rings true" with other available information about the employee. If there appears to be some inconsistency, the employer will probably want to ask the employee for an explanation. But the employer is not expected to investigate the validity or authenticity of the document. Employers who are unsure about whether a document they have seen is one of the ones specified in the box on p.6 can phone a helpline9.
Employers do not need to, and should not, make any checks on: employees who were working for them before 27 January 1997 (unless they re-employ them after that date); people who become their employees as a result of the transfer of an undertaking; workers supplied to them by an agency, provided the workers remain employed by the agency or someone else; the employees of a contractor doing work on their behalf; or self-employed people, such as freelances, doing work for them.
Finally, the Home Office's guidance for employers1 says the exception to the defence (that is, where the prosecution can show that the employer knew, when the employee started work, that the employment would constitute an offence under s.8) does not relate to knowledge acquired after the employment began. In the case of a company, it is likely that the knowledge would need to be in the possession of a person at a senior level in the hierarchy.
Avoiding race discrimination
The Home Office's guidance for employers1 also says that the best way to ensure they do not discriminate unlawfully is to treat all applicants in the same way at each stage of the recruitment and selection process. They may ask for one of the specified documents at any stage of that process, but if they ask for that document from one applicant they should ask all applicants being considered at that stage to produce it. Alternatively, it is perfectly satisfactory to ask for the document only from the person chosen to fill the vacancy if that is most administratively convenient.
Employers should not ask applicants who look or sound foreign for their passports in the first instance if they ask applicants who look and sound British simply for a document containing their national insurance number. If, however, no documented national insurance number is produced, employers should obviously ask for one of the other specified documents.
The Commission for Racial Equality has issued provisional guidance for employers on compliance with the RRA10 which contains a number of "good practice recommendations".
EU Recommendation
The Council of the European Union's Recommendation of 27 September 199611 recommends that member state governments apply certain principles with a view to combating the illegal employment of third-country nationals12. Section 8 does not purport to implement the Recommendation, but courts may still take the Recommendation into account when interpreting s.8.
The Recommendation says the employment of third-country nationals who do not have the authorisations to live and work in a member state required by its law is prohibited, and should give rise to the imposition of criminal and/or administrative penalties on both employers of illegal workers and those who "encourage, facilitate or promote illegal employment". The procedures for punishing the employment of illegal workers could allow the imposition of penalties which are "effective, dissuasive, appropriate and proportionate to the seriousness of the offences committed". They could also allow the elimination of "added profits or other advantages obtained by employers as a result of the offences committed, in particular as regards the wages and charges imposed by the relevant provisions in each member state".
Foreign workers' rights at work and illegal working: main points to note
Specified documents
Seeing and keeping, copying or scanning any one of the following documents will provide a defence to an employer charged with an offence under s.8 of the Asylum and Immigration Act 1996 who acted in good faith13:
CASE LIST
ASTI v Chambre des Employés Privés [1991] ECR I-3507
Bamgbose v Royal Star and Garter Home 26.11.96 EAT 841/95
Bouchaala v Trust House Forte Hotels Ltd [1980] IRLR 382
Dhatt v McDonalds Hamburgers Ltd [1991] IRLR 130
Finanzamt Köln-Altstadt v Schumaker [1995] ECR I-225
Gül v Regierungspräsident Düsseldorf [1986] ECR 1573
Karimjee v University of Newcastle-upon-Tyne 18.2.85 EAT 545/84
Leighton v Michael and Charalambous [1996] IRLR 67
Ministère Public v Even [1979] ECR 2019
Myeza v Avon Area Health Authority (Teaching) 15.6.77 Case No.10808/77
O'Flynn v Adjudication Officer [1996] ECR I-2617
Orphanos v Queen Mary College [1985] IRLR 349
Sharma v Hindu Temple and others 28.11.91 EAT 253/90
Sotgiu v Deutsches Bundespost [1974] ECR 153
Tejani v Superintendent Registrar for the District of Peterborough [1986] IRLR 502
Union Nationale des Entraîneurs et Cadres Techniques Professionnels du Football v Heylens [1987] ECR 4097
Union Royale Belge des Sociétés de Football Association ASBL and others v Bosman and others [1995] ECR I-4921
Vlassopoulou v Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg [1991] ECR I-2357
1 A copy of the guidance should have been received by all employers, and is also available on the Internet at the following address: http://www.open.gov.uk/home_off/ind.htm
2 SI 1997/869 (NI 6).
3 In fact, Commonwealth citizens with the right of abode would have been discriminated against since, as we saw in our previous Guidance Note (Foreign workers 1: immigration and employment ), they are not subject to immigration control.
4 Assuming that, in this respect, the RRA is analogous to the Sex Discrimination Act 1975.
5 SI 1994/1986.
6 See also the complementary EEC Directive No.92/51 as amended.
7 The person must be employed under a contract of employment or apprenticeship, but not a contract for services, whether on a permanent or temporary or a full-time or part-time basis, and in any capacity.
8 See the Immigration (Restrictions on Employment) Order 1996, SI 1996/3225.
9 The number is 0181 649 7878, and it is open from Monday to Friday between 9 am and 5 pm.
10 Available free of charge from the CRE, Elliot House, 10/12 Allington Street, London SW1E 5EH.
11 OJ C304/1, 14.10.96.
12 The definition of "third country nationals" excludes family members of nationals of EU member states who are exercising free movement rights, nationals of Iceland, Liechtenstein or Norway exercising such rights and members of their families.
13 See the Immigration (Restrictions on Employment) Order 1996, SI 1996/3225.
