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By Sanwar Ali:
Over about twenty years we can find no evidence that the OISC (Office of the Immigration Services Commissioner) has undertaken any type of discrimination survey. workpermit.com has recently completed, with the help of an outside survey company, what is probably the only survey of immigration advisers views on discrimination ever. The vast majority of responses we have received for the survey are from the “for profit” sector.
It has been more than three years since the Dr Eva Michalak Supreme Court Judgement establishing certain rights for professionals to take their regulators to the employment tribunal in discrimination-related matters. We have found in this survey that there is still widespread ignorance amongst immigration advisers, and of course many others, about potential employment law rights following the Michalak judgement. The survey confirms that the vast majority of immigration advisers oppose attempts by the OISC to prevent access to the employment tribunals.
Successive immigration services commissioners failing to deal with issues of discrimination
As the OISC frequently has to deal with minority groups, you would expect them to be keen to show that the organisation is free of discriminatory conduct. Over the last twenty years various immigration services commissioners have come and gone. John Scampion was the first ever commissioner, then Suzanne McCarthy (currently Chair of Council of Trustees, Depaul UK) was the commissioner, then Dr Ian Leigh was interim commissioner for some years until a permanent commissioner could be found, and then eventually in July 2019 the current immigration services commissioner John Tuckett took up his position. They have all failed to deal with issues of discrimination and abusive behaviour at the OISC.
Solicitors Regulation Authority SRA report on treatment of black and Asian lawyers
Unlike the OISC the Solicitors Regulation Authority (SRA) does actually publish independent surveys on discrimination. In a recent Law Society Gazette report of 14 December 2020 Huge disparity in BAME solicitors taken to tribunal, SRA figures confirm that BAME (Black and Minority Ethnic) solicitors are disproportionately facing proceedings at the Tribunal. There is considerable evidence to suggest that the OISC has a similar problem. However, the OISC so far has refused to undertake any form of discrimination survey. The OISC is a secretive organisation, with a culture of trying to cover up misconduct and bad behaviour, and have a track record of ignoring complaints made against them over many years.
workpermit.com 2020 discrimination survey during COVID-19 pandemic
The OISC discrimination survey has been undertaken during difficult times. The COVID-19 pandemic has meant that it has been more difficult to contact immigration advisers, many of whom may be working from home. The difficult trading conditions mean that many of those who have been contacted are likely to have more pressing concerns at the moment than responding to a survey. It also seems to be particularly difficult to contact those working in the not for profit sector, and so there have been very few responses from those in the not for profit sector.
Results of the 2020 workpermit.com OISC discrimination survey:
65.8 percent of immigration advisers do not find it acceptable that the OISC is trying to prevent access to the employment tribunal
Not surprisingly immigration advisers are unhappy that the OISC is trying to deny them access to the employment tribunal. Action by the OISC may result in a "two tier system" that will mean that immigration advisers will be unable to make employment tribunal claims, while other professionals will be able to do so. The OISC has even stated in the past that they have been “successful” in preventing immigration advisers from taking them to the employment tribunal. It should be noted that this is subject to further legal challenges. Since the well known Dr Michalak Supreme Court case doctors, solicitors and barristers have taken their regulators to the Employment Tribunal in discrimination cases.
The OISC in it’s Annual Report of 2018/2019 feels that immigration advisers being able to take them to the employment tribunal is a “key risk” and states the following at page 8.
…legal challenge to the legitimacy of the regulatory regime that it operates…
…the second, the extent to which the OISC has responsibilities under employment law towards those it has regulated…
…All these risks have been successfully mitigated…
Only 28.8 percent of immigration advisers know that in some circumstances it may be possible to bring discrimination claims against the OISC in the employment tribunal.
The OISC by keeping immigration advisers in a state of ignorance of the situation, may mean that sixty to seventy percent of potential discrimination claims in the employment tribunal against the OISC never happen. While there may still be legal issues relating to jurisdiction of the employment tribunals, it should surely be up to individuals to decide if they wish to make employment tribunal claims.
Access to justice is an important issue. Employment tribunal claims usually need to be made within three months less one day of the act being complained about. It seems that the OISC has been successful in preventing employment tribunal claims being heard in the three years since the Michalak judgment. So far it seems that not a single claim against the OISC has led to a full hearing in the employment tribunal.
79.5 percent of survey responders say the OISC should tell them that they may be able to make discrimination claims in the employment tribunal.
Immigration advisers overwhelmingly want to know about their potential rights to make claims in the employment tribunal and they want the OISC to tell them about this. Surely, all UK regulators of professionals including the OISC should make sure that those regulated are fully aware of potential rights to make discrimination claims in the employment tribunal.
76.7% of those surveyed have never heard of the Dr Michalak case that established rights of professionals to take regulators to the employment tribunal.
Clearly, despite the importance of the Dr Michalak Supreme Court case many people have never heard of it. The Michalak Supreme Court Judgement in 2017 established the rights of professionals to take regulators to the employment tribunals in discrimination cases. This further underlines the importance of regulators keeping people informed about possible employment tribunal rights. Even many lawyers are not familiar with the Michalak case.
About half of immigration advisers do not know that solicitors, barristers and doctors can make discrimination claims against their regulators in the employment tribunal
It appears that the intention of the OISC is to make sure that there will be a “two tier system” with immigration advisers being excluded from making discrimination claims in the employment tribunal, while other professionals still being able to do so. The OISC is using money paid in fees by immigration advisers and public money to try and restrict employment law rights for immigration advisers, with the Government Legal Department helping the OISC.
60.3% of immigration advisers think that OISC policies and procedures are not discriminatory
In the survey this may be one bit of good news for the OISC. It should however be noted that about thirty percent of respondents to the survey describe themselves as being “white” and so are less likely to be concerned about discrimination. There are also concerns that there may be a “climate of fear” among immigration advisers, with many people being scared to speak out about potentially discriminatory OISC policies.
The OISC is withholding information and refusing to do their own discrimination survey. As most immigration advisers are unaware, that since the Dr Michalak case, that they may be able to bring claims of discrimination against the OISC in the employment tribunal, such claims are unlikely to be made. If more claims had been made in the employment tribunal then there would surely be a lot more information about the true state of affairs at the OISC.
OISC needs to commission their own independent discrimination survey
The OISC, following the example of the Solicitors Regulation Authority (SRA), needs to commission an independent survey on discrimination at the OISC. The SRA has actually been criticised for its inadequate response relating to discrimination, and years long delays in providing further information. The situation at the OISC is even worse with, apparently, no discrimination survey ever being completed in twenty years. In reality the OISC should be doing better than the SRA, not worse.
The current system of regulation is wholly inadequate when it comes to dealing with discrimination claims. Employment tribunals offer a range of remedies not available under the regulatory system and has the expertise and knowledge to deal with discrimination claims. It is completely unacceptable behaviour for the OISC to try and prevent immigration advisers from making claims to the employment tribunal. This affects immigration advisers in particular as a clear majority are from minority groups.