UK universities’ efforts to monitor the whereabouts of international staff members are “discriminatory” and could be in breach of the Equality Act, concerned academics have argued.
Under UK immigration law, higher education institutions should keep a “record of migrants’ absences”, but guidance also makes clear that employers could find themselves in breach of equalities legislation if they carry out attendance checks “only on people they believe are not British citizens”.
Following increasing reports of foreign staff members being asked to account for their time for every hour of the working day through electronic calendars – and being threatened with deportation if they do not comply – fair employment campaigners say such attendance checks on foreign staff members go “too far” and create a “hostile environment” in academia.
Submitting evidence to a Commons Science and Technology Committee Inquiry on 13 June, a group of academic campaigners called International and Broke argued that “huge variation across institutions and even within them” as to what is necessary for Home Office compliance “is often left to individuals with varying knowledge and training about the implications of their actions”.
“The potential for discrimination on the grounds of nationality and/or race, inadvertent distress, and even intentional abuse in these contexts is clear. These undermine the core purpose of universities – to provide high-quality education and conduct world-leading research,” the group added.
Examination of employee rights under the 2010 Equality Act has thrown fresh light on the debate, with one employment lawyer citing “discrepancies” between the laws on fair treatment and employers’ compliance with immigration rules.
Kevin Poulter from Child & Child solicitors said that, while he believed it was “generally good practice” for any employer to keep a staff register on health and safety grounds, it was clear that some universities were taking “disproportionate steps” to do this.
“From an employment point of view I don’t see [daily check-ins] as being a breach of human rights but equally it’s not something they need to do because the legal guidance only suggests reporting migrant absences after 10 working days,” he told Times Higher Education.
If universities apply attendance monitoring policies only to those who have work permits and go beyond the requirements stated by the Home Office, “it is more likely to be argued that it falls foul of the Equality Act”, he said.
“Immigration status is not a protected characteristic, but nationality is,” Mr Poulter said. “I can see circumstances where a tribunal could find that a policy singling out migrant workers could be considered a breach on nationality grounds.”
Universities were arguably better off applying attendance policies across all staff, regardless of nationality and immigration status, if they are to avoid discrimination, he added.
Two years ago, the University of Edinburgh admitted that it had expanded a staff attendance reporting system to all employees – partly so as to avoid any doubt that the move was discriminatory against non-UK citizens.
Asked whether such a system was still in place affecting all staff members regardless of nationality, a spokesman told THE that there remained “an expectation that all our schools have simple and appropriate ways of ensuring that staff share relevant information about absence from the office on a consistent basis”.
“This is in line with our commitment to treating all staff fairly and equally, regardless of nationality, and is in line with good employment practice,” he added.