Is it discriminatory to ask job applicants for five-year checkable histories before employing them? Esther Smith and Martin Brewer advise.

The question:

My company has a contract with a major bank, which stipulates that when we take on people to work on their premises they have to have lived in the country for five years, so they can be checked out, and have five years of employment references.

I have explained to my boss that this is discriminatory but it seems that retaining the contract is more important to them than people bringing claims against the company. When we advertise our jobs we state, and I quote: “Please provide names and addresses of previous employers for the last five years.”

I know we are wrong by doing this because this then discriminates against someone that has just left school, for instance. Does anyone have any suggestions on how we can re-word this? What we require is that applicants have a five-year checkable history. Also, are we right in asking people that they have to have lived in this country for five years before we can offer them a job?

Legal advice:

Esther Smith, partner, Thomas Eggar

This may or may not amount to discrimination; it depends on what grounds a person alleges to have been put at a disadvantage of having to comply with this requirement. This could be on the grounds of age or nationality (if an applicant is not a UK national).

However, if it is discrimination, it is indirect (the application of a condition or requirement that has a disproportionate impact on some candidates due to their age, nationality etc) and is therefore capable of being justified.

There are some industries where there is a statutory obligation on employers to verify five year histories, for example in order to be given air side passes in the aviation industry, and the bank that you are working with would probably seek to rely on security issues as their justification for this referencing requirement. In this day and age it is probably not a difficult test in this context to rely on security as a justification.

Therefore in summary it may be discrimination but it is unlikely to be unlawful discrimination.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.

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Martin Brewer, partner, Mills & Reeve

You are right. There seem to be two requirements here. The first is the bank’s requirement of five years’ UK residence. This is left unsaid in the advert but is part of your brief. The second is the express requirement that the applicants must have five years’ employment. These requirements are each a ‘provision, criterion or practice’ (PCP) for the purposes of section 1(1A) of the Race Relations Act 1976 (RRA) and regulation 3 of the Employment Equality (Age) Regulations 2006 (EEAR).

If you apply these PCPs to your recruitment process then in relation to the RRA you will clearly be disadvantaging those who have not lived in the UK for five years, which may well discriminate on the grounds of nationality or ethnic or national origins.

Furthermore as you say the requirement to have five years’ employment may well be a breach of the EEAR, since it’s very unlikely you will employ anyone under 21 and possibly a higher age (if for example you are looking for recruits with A levels, in which case the age will rise to 23, or with a degree, in which case, 26).

In both the RRA and EEAR you can justify this indirect discrimination if you can prove that you have a legitimate business aim and your means of achieving it are proportionate. So, for example, if the five years related to experience and the employer could justify the need for five years’ experience it may be able to successfully defend an EEAR claim.

But I can’t see any real justification under the RRA. Actually what the bank wants is a five-year UK history apparently just so it can be checked. But work abroad can be checked so the PCP here cannot be proportionate even if there was a legitimate business aim (which is not at all clear).

Your proposed advert wording and five-year history requirement simply invites litigation and I suggest a fundamental re-think.

Martin Brewer can be contacted at [email protected] . For further information, please visit Mills & Reeve.

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