Indirect race discrimination by paying overseas staff on visas more

Background

Mrs Gharabli was employed by Cedar Hope Care Services Ltd, a small nursing and residential care staff provider. Mrs Gharabli was employed as a Support Worker from February 2023 on £10.50 an hour and was later promoted to Senior Support Worker from May 2023. On receiving this promotion, her salary increased to £12.50 an hour, and this was due to increase to £13.50 an hour on successful completion of her six month probation period.

During Mrs Gharabli’s employment, a large proportion of her colleagues were overseas Support Workers who were working on Skilled Worker visas. At the time that she was acting as a support worker and earning £10.50 an hour, Mrs Gharabli’s colleagues on Skilled Worker visas were being paid £12.31 an hour. This higher rate was linked to the Home Office’s minimum salary requirement for employees on a Skilled Worker visa.

Mrs Gharabli became aware of the difference in pay between workers performing the same role in August 2023 and raised concerns with her employer. Shortly after this, her pay as a Senior Support Worker was increased.

In December 2023, Mrs Gharabli requested a return to her earlier role as a Support Worker due to personal and family health reasons. Following this, her pay was reduced to the domestic rate again, which was lower than her colleagues on the Skilled Worker visas.

Employment Tribunal decision

In this case, Cedar Hope Care Services Ltd accepted that it had applied the PCP of paying employees on a visa a higher hourly rate than Support Workers not on that visa (domestic workers).

The company attempted to rely on the Home Office minimum pay requirements for overseas workers as a legitimate aim. The Tribunal acknowledged that legal compliance is a legitimate aim but stated “bare legal compliance is not by itself enough to establish that the PCP is appropriate for achieving that aim and reasonably necessary where there is a disparity in pay for the same work.”

The Tribunal held that the company could not evidence that no less discriminatory alternative would achieve compliance and they had not considered less discriminatory alternatives. As the company had increased Mrs Gharabli’s salary following complaints about the pay disparity, it was held that the salary was a flexible and arbitrary amount which could have been altered to provide a less discriminatory result.

Mrs Gharabli was awarded £14,175 in total, including an award of £10,000 for injury to feelings.

Comments

Companies should be aware that paying more to those on Skilled Worker visas than to domestic employees may amount to indirect race discrimination unless the disparity in pay is objectively justified.

Companies must therefore consider less discriminatory options and justify why they are not suitable, rather than simply relying on the legal position that those employed on a Skilled Worker visa must be paid a minimum salary set by the Home Office.

If you have employees on Skilled Worker visas and require legal advice, contact our specialist lawyers.