Higher legal minimum wage for overseas staff - Is it discriminatory?

 

The case concerned domestic support workers. Overseas workers were paid more than domestic workers in the same role, due to the Home Office's minimum salary threshold for skilled worker visas.  

 

The employer argued that this was unavoidable, as they had to meet their legal obligations. However, the tribunal found the unequal pay to be discriminatory. It also found that the claimant had been subjected to detriment for making protected disclosures. 

 

 

The tribunal accepted that meeting legal obligations is a legitimate aim. However, it found that this alone did not justify the policy of paying overseas workers more. This decision came down to the employer’s failure to justify why they could not match those rates to all workers. 

 

The only alternative considered by the employer was to not employ overseas workers. It failed to consider the less discriminatory option of matching domestic workers wages to the overseas rate. It did not provide the tribunal with evidence as to why this wasn’t possible. The tribunal concluded that the employer was in fact able to match these rates, as it did so when challenged. This also showed that the employer understood the employee’s perception that the different rates were unfair. 

 

This does not necessarily mean that domestic workers must be paid the same minimum rate as overseas workers. If there is a genuine reason why it is not possible to match the rate, then a tribunal may be satisfied the practice of different rates is proportionate. The employer must have considered other less discriminatory options and would need to justify why they were not suitable. However, offering domestic workers the same rate as overseas workers doing the same level of work is the best way to avoid the risk of claims.