In the Tribunal case of Gharabli v Cedar Hope Care Services

The Tribunal found that Mrs Gharabli suffered indirect race discrimination because she and other support workers employed at Cedar Hope Care Services were paid less than overseas workers.  The company had decided to pay overseas workers a higher rate due to the minimum yearly salary threshold set by the Home Office for skilled worker visas which at the time was set at £26,200 per annum.

The organisation argued that overseas workers had additional duties to complete community work and social reports for court proceedings but the Tribunal disagreed and found that domestic and overseas support workers had the same responsibilities.

The company also argued that it paid every worker what they were legally entitled to and that otherwise, the only foreseeable action for the business was not to hire overseas staff at all.

The Employment Judge rejected this and found that there was no evidence from the company to show that it would be financially prohibitive to match the pay of the domestic support workers with that of their overseas colleagues. While legal compliance could be a legitimate aim that organisation had not shown proportionate means and should have considered less discriminatory alternatives eg matching pay – the employer should have done this and presented evidence  of the financial ramifications for their business.

Essentially the employer would need to consider less discriminatory options and justify why they were not suitable – however cost alone is not a valid reason as an employer can’t argue it would be less expensive to discriminate.

If any member company finds themselves in a situation where they would require to pay an overseas employee more than a UK national due to Home Office salary thresholds, they should seek advice from a member of the HR and legal team before proceeding.