LEADING Scottish employment lawyer Peter O’Donnell has warned that UK Home Secretary Amber Rudd’s plans to force companies to draw up a list of foreign workers could contravene race relations and anti-discrimination at work laws, writes Janice Burns.

He also said it could be a potential legal minefield for employers, leaving them open to expensive claims of discrimination from workers who feel they are being targeted because of their ethnicity.

Earlier this week Nicola Sturgeon claimed there “may well be” a case for a second EU referendum on Theresa May’s final Brexit after pledging to support any company which refused to comply with Rudd’s suggestion that companies could be forced to list foreign employees in a bid to “name and shame” those with the highest numbers.

O’Donnell, an associate at Thompsons and also an expert in immigration issues, warned of the potential pitfalls of Rudd’s plans and stressed it could be a “nightmare” for companies and staff their workers.

He said: “Employers would have to be very careful when they are trying to understand what this policy means for them. You can see that some employers won’t want to be named and shamed for taking on foreign workers, but equally, inadvertently, they could walk themselves into discrimination claims. It’s not Amber Rudd who is going to in the firing line for that, it is going to be the individual employer.

“At the moment there is no requirement in law to list how many workers you employ by ethnicity, although public sector bodies have what is known as the public equality duty to produce reports about the make-up of their organisation by gender, ethnicity, age, disability and have certain duties to avoid discrimination, but private employers have no legal obligation to maintain and list, or even give numbers of, who they employ by ethnicity.”

Theresa May’s government is facing a growing backlash over a proposal to force companies to disclose how many foreign workers they employ, with business leaders describing it as divisive and damaging, and warning that the plan would be a “complete anathema” to responsible employers.

O’Donnell added: “First of all, the government would have to introduce a legal requirement for all employers in the UK to maintain such a list, before you even get to the naming and shaming point. Then there is how you go about that. At the very least, you would expect employers to anonymise it so people say they don’t want identified and you have to be careful about how people describe themselves, because you are talking about national origin here.

“You cannot guess that just because someone is called Barry means they are British, and just because someone is called Mohammad it doesn’t mean he is from Pakistan, Saudi Arabia or the Middle East. You have got to be very careful about that and there is a degree of letting people self-describe, people may have different views about their ethnic origin or national origin, and those may be different.

“Someone could perceive themselves as British, even though they were born in another country, because they came here as a child and lived here most of their lives. How do you break that down? Employers cannot make assumptions because if they do that they walk themselves into a discrimination case because the likelihood is that it would be Mohammad who would be taken in and questioned about it.

“It is a slippery slope and you can almost see this as something out of fiction where people are being questioned about where they come from and I think it would cause a lot of difficulty. It is a potentially a nightmare for employers, employers and the government. It is a nice big soundbite headline policy issue but when you start breaking down what that actually means in practice, it becomes an absolute minefield.”