January 8, 2018

Unfair: dismissal of employee who could not prove his right to work in the UK

UK visa

The EAT held that the immigration rules did not impose an obligation on employers to obtain proof of the right of work. All the right to work checks did was provide the employer with an excuse from a fine of up to £20,000 for illegal working.

The facts

The case, Mr D Baker v Abellio London Ltd, UKEAT, October 2017, concerned Mr Baker, a Jamaican national who had lived in the UK since he was child. The court was told that Mr Baker was permitted to live and work in the UK under the Immigration Act 1971. He had been employed as a bus driver by bus company, Abellio London Limited, since 2012.

The bus company carried out an audit of its workforce in 2015 after it discovered one of its staff did not have the correct documentation. Mr Baker was also unable to provide documentation showing his right to work in the UK. He explained that he had the right of abode and the right to work in the UK, but that his Jamaican passport had expired. The company informed him that his passport alone was insufficient and that it also required a work visa. The company sought advice from the Home Office who confirmed that Mr Baker did in fact have the right to live and work in the UK. It explained that Mr Baker’s lack of documentation did not provide the company with a statutory excuse in respect of a civil penalty.

The employer confused the two matters and dismissed Mr Baker on the basis that it was illegal to continue to employ him on 3 July 2015. Mr Baker pursued a claim of unfair dismissal in the Employment Tribunal which he lost.

The Employment Appeal Tribunal

In October 2017, Mr Baker took his case to the Employment Appeal Tribunal (EAT). This higher court quashed the tribunal’s findings. It was not illegal to continue to employ Mr Baker as he had the right to live and work in the UK, which the Home Office had confirmed to the company. Mr Baker did not require leave to enter or remain in the UK, and was not subject to immigration control. In addition, there was no obligation to obtain specific documentary evidence that Mr Baker had the right to work in the UK. The right to work documentation gave the employer the possibility of excusal from a significant civil penalty.

The EAT held that it was possible for a dismissal to be fair where an employer held a mistaken but genuine belief that it was illegal to continue to employ an employee in the absence of documentation. However in such cases, the reasonableness of the belief would be scrutinised, and in particular the steps taken by the employer to ascertain the true position, given the dire consequences of dismissal for an employee.

What can employers learn from this?

The case exemplifies the difficulties facing employers who fear substantial fines and potential prosecution for employing illegal immigrants, and the duty to treat staff fairly.

On this occasion, the EAT’s decision was plainly correct, particularly as the Home Office confirmed Mr Baker’s right to work in the UK to the company. The company was confused by the immigration rules, and understandably fearful about breaking the law.

However, the case does not suggest that employers can be more relaxed about carrying out right to work checks. In fact, it underlines the importance of carrying out checks and making enquiries to ascertain an employee’s true immigration status, particularly if it believes that an employee may not have the right to work in the UK.

If an employer subsequently decides to dismiss an employee because it believes it would be breaking the law to continue to employ a person, it must be prepared to show the steps it has taken to demonstrate its genuine belief about the situation. In some cases, an employer may want to give the employee an opportunity to obtain relevant documents, particularly if the situation is far from clear. Employers will also want to ensure that employees are obliged under their contracts of employment to provide documentary evidence of the right to work during their employment. Any such clause should warn of disciplinary action including dismissal in the event that employee is unable to comply with such an obligation.

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