Tribunal backs migrant workers

Roger Pearson examines an employment discrimination case which strengthens workers' rights to freedom of movement within the EU

A recent employment appeal tribunal (EAT) ruling serves as a reminder to employers of the potential risk of provoking a discrimination action if they turn away job applicants on the basis of the EC country which they come from.

Theoretically, in the light of the ruling, if a British supermarket chain were recruiting staff for a new store it was opening in Amsterdam and refused a Spaniard a job on the ground that it was looking for Dutch staff only, it could end up being sued in the UK under the provisions of the Race Relations Act 1976.

The case concerns an Italian who answered an advertisement in the UK national press for airline cabin crew who would be living and working in Italy.

The job was advertised by Ansett Worldwide Aviation Services which was recruiting for Alitalia. But when the interviews took place, the Italian applicant, a Mr Bossa, was turned down on the basis that he was Italian and that the Italian authorities would not allow Ansett to recruit Italians to work back in Italy. However, another applicant who produced both UK and Italian passports to confirm he had dual nationality was taken on.

Bossa then took Ansett to an industrial tribunal, accusing it of discriminating against him on the basis of his nationality. The tribunal rejected his claim, ruling that the employment he had been refused was not at an establishment in Great Britain, and that he would have worked mainly outside the UK, so taking him outside the protection of the Race Relations Act.

However, Bossa appealed, submitting that the provisions of Article 48 of the Treaty of Rome, which provide for freedom of movement for workers within the EU, took precedence over the Race Relations Act provisions on which the tribunal dismissed his claim.

Now, in what Bossa's solicitor Makbool Javaid, a discrimination and European law specialist with Dibb Lupton Alsop, says is a "ground-breaking" decision, the EAT has agreed with his client's argument and sent the case back to be reconsidered by industrial tribunal.

The EAT branded as "absurd" arguments that Article 48 could not apply to Bossa because he was an Italian national seeking to work in Italy. "The free movement of workers includes the right of Mr Bossa to work anywhere within the EU," it said.

According to Javaid, the tribunal's decision is extremely significant, because many claims are likely to arise in the light of the current emphasis on worker migration between EU countries. He says: "As a result of the Bossa decision, employers will now have to ensure that their practices and procedures in relation to employment within the EU do not discriminate on the grounds of nationality against EEA (European Economic Agreement) citizens.

"The potential dangers are vividly illustrated by the fact that Race Relations Act claims could now be brought in this country, for example, by a German national living in Belgium who applies for a job in France advertised in a British national newspaper and who is refused the job on grounds of nationality. That refusal in the UK could give rise to complaint even though the job is to be performed entirely in France."