Several supermarkets have announced measures to help refugees

As the humanitarian crisis in Ukraine unfolds, a string of supermarkets have announced special measures for refugee job applicants, from guaranteed interviews to fast-tracking.

But is it legal? It’s a question Iceland MD Richard Walker found himself wondering on live TV last week, when asked on ITV’s Good Morning Britain if there would be “an impact on British people getting those jobs”.

“I don’t know if it’s technically legal but we wanted to do everything we could,” he said.

Iceland wants to fast-track Ukrainian refugees from application to job offer in a depot within seven days. Others to make pledges include Asda, which is guaranteeing job interviews to appropriately qualified Ukrainians; Aldi and Lidl have said they have 8,000 and 3,000 vacancies respectively and have been talking to government about recruiting Ukrainians.

One supermarket tells The Grocer it has “removed some of the usual levels of admin” for Ukrainian applicants. “However, there’s a legal piece we need to be careful with,” the source says. “If you’re not Ukrainian, could you say you’re discriminating against me?”

Boxes warehouse worker

Source: Getty

Supermarkets have thousands of vacancies in warehouses in particular, and might argue filling them is a ‘legitimate aim’ of speedy recruitment

Naeema Choudry, partner in employment and equality law at Eversheds Sutherland, agrees: “When preparing to focus on one demographic, companies have to be careful they are not exposing themselves to claims for discrimination.”

Anita North, head of employment law at consumer law firm Simpson Millar, warns: “Unlike other employment law protections, you can claim for discrimination suffered during an interview process. There is no need for claimants to have been employed.”

And while Good Morning Britain put Walker on the spot about British people, “It isn’t just British unemployed that would be discriminated against by automatic employment, but people of all nationalities who might have applied for the work,” explains Mary Walker, partner and employment specialist at law firm Gordons.

“If you’re not Ukrainian, could you say you’re discriminating against me?”

The claim could be brought any time within three months of what is referred to as the “last act of discrimination”, says North. In this case, that could be the point at which a non-Ukrainian was rejected, either at or before interview stage.

“Let’s say you’ve got some people who have been trying for this particular job for months and keep getting rejected, and then all of a sudden you have a particular group getting straight in there,” says North. “That’s where your problems will lie.”

Positive discrimination

There are limited circumstances in which positive discrimination is lawful, where it is in favour of people with one of nine ‘protected characteristics’ set out in the Equality Act 2010. Among these is race, including nationality and ethnic or national origin.

However, experts are doubtful of an employer’s chances of convincing a tribunal this covers Ukrainians, because it could require showing that Ukrainians specifically are at a disadvantage, or underrepresented in the workforce, compared with other underrepresented groups.

“The criteria for positive action does not fit the recruitment of refugees from one particular country,” says Mary Walker.

Ukraine flag (3)

An employer must be able to show that a non-Ukrainian applicant of the same standard would also have got the job

In the event of a claim, a retailer will need to show any measures they have taken are a proportionate means of achieving a legitimate aim, says North. Where they have labour shortfall – for example Aldi’s 8,000 vacancies – they might argue that attempting to hasten the recruitment process for Ukrainians, and creating a communication strategy to welcome applicants, is a proportionate means to the legitimate end of filling the vacancies and helping those vulnerable refugees.

But the criteria for success in the selection process must remain consistent, so the employer can show that a non-Ukrainian applicant of the same standard would also have got the job, says North. “Employers must be clear and consistent about their selection criteria, follow their procedures and keep clear written records of why decisions were made,” she says. “You would think a major employer would have these procedures in place.”

For fast-tracking, guaranteed job interviews or other special measures, HR departments need to be careful.