Right to Work Checks and Unfair Dismissal, by Nathan Campbell, Cleaver Fulton Rankin Solicitors
At first instance in this case it was held that the employee’s failure to provide documentary proof of right to work in UK was a valid reason for the employer to dismiss the employee on grounds of illegality. However, this decision has recently been overturned in the Employment Appeal Tribunal (EAT).
Facts of the case
The employee is a Jamaican national with right of abode under the Immigration Act 1971 who worked as a bus driver with the employer until his dismissal in 2015. In 2015 upon learning that another employee did not have the right to work for them (and being mindful of the potential £20,000 fine and criminal liability that can be imposed on employers by the Home Office for employing such individuals) the employer carried out an audit of its workforce.
The employee’s passport had expired in 2000 and so did not have documentation which satisfied the Home Office guidelines. The employer lent the employee money to obtain the requisite proof and suspended the employee without pay during this period.
While the employee renewed his passport he did not obtain the “No Time Limit” endorsement which they requested because he (i) could not afford it after spending the loan on food and bills and (ii) did not need it. As a result of this he was dismissed by reason of illegality.
In this case the employee was not subject to immigration control and so the EAT held that the original judge had erred in finding that the employer’s dismissal was in accordance with the Employment Rights Act 1996 (“the Act”). The EAT looked in detail at the provisions of the Immigration, Asylum and Nationality Act 2006 and pointed out that it only applied to adults subject to immigration control which is defined as a person who under the Immigration Act 1971 requires leave to enter or remain in the UK.
This was not the case for the employee. Furthermore under the legislation there is no requirement on employers to obtain this documentation it is simply a defence from a penalty if the employee is subsequently found to be working illegally. In this case the employers did seek some advice from the Home Office but it is not entirely clear what the authorities were told by the employer and the judge was not convinced that the decision was taken in a reasonable manner.
Interestingly the EAT stated that a dismissal for “some other substantial reason” (one of the potentially fair reasons for dismissal under the Act) on the basis of a genuine but mistaken belief could have potentially been fair.
The EAT also held that the employee’s claim for deduction of wages during the period of his suspension should be heard. Therefore, the EAT remitted both claims to a fresh re-hearing at tribunal.
This case raises difficult questions for employers who have the threat of unfair dismissal and race discrimination claims on the one side and severe Home Office penalties on the other. While this could be seen as a catch 22 situation there are a number of lessons which can be learned:
- It is not usually advisable to suspend the employee without pay in circumstances such as these. The fact that the employee was not being paid explains why he was reluctant to spend a relatively large sum of money on the “No Time Limit” endorsement.
- Right to work checks should be conducted before an individual is employed rather than leaving issues to be uncovered by an audit years down the line (though periodic audits are still advisable).
- The employer’s focus should be on whether or not the employee has the right to work rather than necessarily a fixation on documentation.
- In a case such as this where an employee fails to comply with instructions it is important to establish why this is the case, if the refusal is for a legitimate reason and if not whether or not the refusal should lead to disciplinary action in its own right.
- Where the employer is unsure it is possibly safer to plead some other substantial reason rather than illegality as the reason for dismissal.
- Immigration and nationality issues are complex and in situations such as these it would be advisable to seek legal advice before deciding that it is illegal for the employment contract to continue.