Two conflicting forces are making a mine field for employers in the UK. The Osborne Clarke Services v Purohit ruling punished an employer who excluded those who needed a work permit from their recruitment process.It was found to be contrary to the Code of Practice on Racial Equality and Employment. This specifically states that "Employers can apply for work permits and should not exclude potentially suitable candidates from the selection process".
However the UK governments new cap on work permits has made it increasingly difficult for employers to obtain work permits... therefore encouraging them to exclude candidates who they may not be able to employ. It places an unneccessary burden on employers to go through an expensive recruitment process with a candidate who is unlikely to be allowed into the UK.
Quite the pickle isn't it!
In point of fact Osborne Clarke were punished for not demonstrating sufficiently that they were unable to attain a work permit which was relatively easy under the old work permit scheme. However the new Tier 2 "registered sponsor" system doesn't exclude any employers from applying for and issuing work permits. The main proof that a work permit would not be successful would be demonstration an application would fail the "resident labour market test", i.e. that there are sufficient local candidates to fill the position and therefore the Border Agency would refuse a permit application. The second option is for employers who are already registered sponsors who can show they have exhausted their quota of available permits.
Where it gets really difficult is for employers who have a number of positions open but only a few Certificates for Sponsorship (COS) open. Let's say you've got one COS left, are recruiting for multiple hard to fill positions and choose to prioritise an exceptional foreign candidate. This does, conceivably, leave the employer open to discrimination accusations for any other overseas applicants.
Just another example of how the heavy handed quota system is proving a headache for UK employers. If you are an employer and worried about your situation, we'd recommend getting an assessment with a registered immigration attorney to provide some backing to this.
Interestingly it may also affect recruiters and even recruitment websites - for e.g. www.jobserve.co.uk which at the time of writing allow advertisers to specify "Applicants must be eligible to work in the specified location". But this is a topic for another day...