A discrimination charter

Employers looking for staff to work in an unregulated profession in the UK often advertise for applicants voluntarily registered with specific professional bodies. Registration with a professional body that allows the applicant to use a 'chartered' title, such as 'chartered civil engineer', tends to be highly regarded by employers. But could employers who insist that applicants be registered with a specific professional body in the UK unlawfully discriminate against applicants from overseas?

Unregulated professions

An unregulated profession is a profession for which there is no legal requirement or restriction on practice with regard to licenses, certificates or registration. In the UK, many parts of the building and construction trade are unregulated including the professions of civil engineer, structural engineer, surveyor and quantity surveyor. Other unregulated professions in the UK include hair dressing and alternative medicine.

However, while no prescribed educational or professional qualifications are necessary in order to practice in the above professions in the UK, applicants often choose to voluntarily register with a professional body. Such professional bodies include the Institution of Civil Engineers (ICE), the Institution of Structural Engineers (ISE), the Royal Institution of Chartered Surveyors (RICS) and the Hairdressing Council. A professional body may grant the applicant additional credentials, such as a professional title. For instance, the ICE, the ISE and the RICS may award the professional titles of 'chartered civil engineer', 'chartered structural engineer' and 'chartered surveyor' respectively.

Most of these organisations actively highlight the professional benefits of registration. ICE, for instance, says its membership 'is the hallmark of the professional civil engineer'¦ and gives you the competitive edge that sets you apart'¦ More than any other professional accreditation, membership will mark you out as a structural engineer working at the top of the profession'. While RICS invites potential members to 'gain an internationally recognised, highly prestigious professional qualification'.

Registration with a relevant professional body will frequently provide the basis for acceptance of professional credentials by employers unfamiliar with the standing of professionally qualified applicants. Recruiters advertising on one of the leading UK job search engines at the time of writing included a company 'looking for a candidate that will be chartered or near chartered with ICE', a large global insurance company 'seeking a chartered engineer', and a reputable housing association 'seeking a maintenance surveyor'¦ [who] must be RICS certified'.

How does this affect applicants from overseas? Let us assume that a civil engineer comes to the UK from another EU member state and (understandably) he has never applied for 'chartered' status with a UK institution. In Germany, for instance, it is compulsory for engineers to register with a local Chamber of Engineers ('Ingenieurkammer') in order to practice as a consulting engineer and use the title 'Beratender Ingenieur' (ICE, 2005, Working as an engineer in Europe, page 9).

Unregulated professions in the UK are subject to European Community principles and directives. EU nationals who wish to practice an unregulated profession in the UK and possess qualifications which would entitle them to carry on that activity in some other member state cannot be prevented from doing so on the grounds of inadequate qualifications (European Commission, 2005, Working in another EU Country, https://ec.europa.eu).

Scope for race or qualification discrimination

One can presently foresee a situation where an employer who insists that all applicants for a position must be, for example, 'chartered' would exclude a large proportion of the applicants who are from overseas because, presumably, overseas applicants are less likely to be voluntarily registered with a professional body in the UK '“ but may well have the relevant credentials to work in the position, albeit obtained in a member state other than the UK.

The Race Relations Act 1976 renders unlawful racial discrimination in the field of employment (see box).

Arguably, employers who insist that applicants be registered with a professional body in the UK subject applicants from overseas to less favourable treatment based on assumptions about the credentials of such applicants (in that they are inferior to the professional titles awarded by professional bodies in the UK) which may have the effect of an overseas applicant being treated not as an individual, but as a racial stereotype.

An example of a requirement which was held to be prima facie discriminatory was a requirement in Bohon-Mitchel v Common Professional Board [1978] IRLR 525 that overseas graduates with non-law degrees should take a two-year diploma course in order to qualify for admission to the Bar finals course, while UK graduates were only required to take a one-year course. In this case, the court found that 'knowledge and experience suggest that the proportion in the pool of persons of the applicant's racial group, that is'¦ graduates of a nationality (or of a nationality of origin) outside the [UK]'¦ who have a [UK] degree must be much smaller than the proportion in the pool of [graduates of a nationality inside the UK who have a UK degree]'.

This case is similar to our present scenario in that applicants with overseas credentials were treated in a less favourable way when compared to applicants with equivalent credentials from the UK. Thus, if our hypothetical Beratender Ingenieur is turned away because he is not 'chartered', he could argue, with reference to relevant statistics, that when considering the requirement to be 'chartered' under sub-section (1)(b)(i) RRA 1976, the proportion in the pool of 'chartered engineers' of his racial group (i.e. of a nationality outside the UK) must be much smaller than the proportion in the pool of persons not of that group (i.e. of a nationality inside the UK). It follows that if a professional body has a high proportion of British members, then it is likely that a requirement for applicants to be registered with that body would be regarded as prima facie discriminatory against applicants from overseas. The relevant proportions of British and foreign members within a professional body would of course vary between different professional bodies.

Possible justification

Indirect discrimination by employers may be justified in certain circumstances under sub-section (1)(b)(ii). The authoritative approach to assessing the requirements of justifiability is that formulated by the Court of Appeal in Hampson v Department of Education and Science [1990] 2 All ER 25. The Court of Appeal adopted Stephenson LJ's test from Ojutiku v Manpower Services Commission [1982] ICR 661 by asking the question: 'Was the requirement [objectively] 'reasonably necessary' to the party applying it, balancing its discriminatory effect against the discriminator's need for it?'

With regard to unregulated professions, an overseas applicant could conceivably argue that a requirement to be registered with a specific professional body (more specifically, one in the UK) is not justifiable because such registration is not required to practice in the UK and equivalent professional credentials can be obtained from various organisations throughout Europe, including the respective regulatory and professional bodies of other member states, such as the Ingenieurskammer in Germany.

Requirement to suffer a detriment

The employer may argue that our Beratener Ingenieur (even though he is not 'chartered') has suffered no 'detriment' under section 1(b)(iii) because he can comply with the requirement of being 'chartered' by registering with the specified professional body.

In Raval v Department of Health [1985] IRLR 370, it was held that 'the [complainant]'s inability to comply with the requirement did not in practice operate to her detriment because it would be so easy for her in the future (and would have been equally easy for her in the past) to obtain the necessary qualification simply by sitting an examination [for an 'O' level in the GCE English Language paper] which she could pass with ease'.

Therefore, the easier it is for the applicant to obtain membership with the specified professional body in the UK, the less likely it is that the applicant has suffered a 'detriment' under section 1(b)(iii).

The requirements of registration with professional bodies of course vary. Such bodies will often require a detailed assessment of the applicant's academic qualification and practical experience, interviews and examinations. In certain circumstances, an applicant may obtain membership solely by virtue of his credentials obtained in another member state.

For instance, engineers qualified as 'chartered civil engineer' or 'chartered structural engineer' are considered to hold a regulated professional title and, under the general system for the recognition of higher-education diplomas, the ICE and the ISE are among those included in a list in schedule 1 of the European Communities (Recognition of Professional Qualifications) Regulations 2007, SI 2007/2781.

Thus, a qualified engineer from a member state outside the UK may choose to apply to the ICE or ISE under their European Directive Route for the 'chartered' engineer title (ICE, 2009, Membership Guidance Note MGN 28, 18 August) and an employer could thus argue that such applicants can become registered with the relevant professional body 'with ease' and have, therefore, suffered no 'detriment' under section 1(b)(iii).

The factual finding on detriment is of course one for the tribunal to make with reference to the circumstances of each individual case.

The right wording

In light of the above, in the case of unregulated professions, employers would be well advised to refrain from specifying that all applicants must be registered with a specific professional body.

By way of example, an employer should not advertise a vacancy for a position of 'chartered civil engineer' but, for example, for 'an engineer who is chartered or equivalent'. Otherwise, there may well be scope for discrimination proceedings to be commenced against such employers by applicants from overseas because these applicants may hold credentials (awarded by a regulatory or professional body in another member state) which are equivalent to the credentials awarded by the professional body in the UK.

Instead, employers should consider such applications on their own merits and on the individual credentials of the applicant.