LS Legal News Bulletin
Dismissal for Failing to Provide Evidence of Right to Work is not a Fair Reason
Thursday 14th December 2017
In the case of Baker v Abellio London Ltd [2017] UKEAT 0250_16_0510, the Employment Appeal Tribunal found that not having documents confirming an employee's right to work is not in itself a fair reason for dismissal. However, genuinely believing that you need the documents can be a fair reason for dismissal.
In brief, under the Employment Rights Act 1996 (the Act) a dismissal will be fair if an employer can show that he had a fair reason to dismiss and then, even if there was a fair reason to dismiss, the Tribunal must decide if the employer acted reasonably in the circumstances of the case. There are five fair reasons to dismiss, one of which is known as "some other substantial reason", this includes someone's legal status to obtain work lawfully.
It is unlawful to employ an individual who does not have the right to work in the UK, or is working in breach of their conditions to stay in the UK. Employers have a legal obligation to carry out pre-employment checks. If sufficient pre-employment checks are carried out employers obtain a defence against liability for a civil penalty of up to £20,000 per illegal worker.
Mr Baker was a Jamaican national whom had the right to work in the UK, however he did not have any documentary evidence to prove it. Therefore, his employer, Abellio London Ltd dismissed him on the grounds of illegality. The company thought - encouraged by Home Office advice - that by continuing to employ him in those circumstances, it would be acting unlawfully.
The Employment Tribunal judge agreed, however this was appealed further, and the Employment Appeal Tribunal found that this was an error. The first instance judge had relied on section 15 of the Immigration, Asylum and Nationality Act 2006, which says that
(1) It is contrary to this section to employ an adult subject to immigration control if -
(a) he has not been granted leave to enter or remain in the United Kingdom, or
(b) his leave to enter or remain in the United Kingdom -
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing him from accepting the employment.
But section 25(c) of that Act defines a person who is subject to immigration control as a person who "requires leave to enter or remain in the United Kingdom". Mr Baker did not as he had the right of abode or Indefinite Leave to Remain in the UK and therefore his employer was not obliged under the Act to obtain specific documentary evidence that he had the right to work in the UK. The Employment Appeal Tribunal held that:
Even if the Claimant had been subject to immigration control, section 15(3) does not impose a requirement on an employer to obtain certain documents. It gives the possibility of excusal from penalty if certain documents are obtained from the employee.
Therefore, Abellio London Ltd had been wrong to believe that it was illegal to continue employing Mr Baker.
Unfortunately for him, though, the tribunal found that the employer's genuine belief that it would have been acting illegally could be "some other substantial reason" establishing a fair reason to dismiss.
What Does this Mean for You?
The judgement confirms that there is no requirement on an employer to obtain certain documents to continue employing someone. If an employer is satisfied that its employee has the right to work, for example because they have evidence that an application was made on time; or they have a positive verification from the Home Office of the employee's right to work - they cannot dismiss the employee only because they do not have a document demonstrating that right.
If your employer is awaiting an outcome from an Employee Checking Service (ECS) check, and decide to dismiss you in the interim, you will have to prove that you provided all the documentary evidence available to you to confirm your right to work. This could limit the success of the employer claiming that they had a genuine belief that they would have been acting illegally should they have continued with your employment.
Our team of Specialist Immigration and Employment Lawyers can assist you in your matter, whether you need to regularise your stay, confirm your right to work or you have been dismissed for failing to prove that you have a right to work. Contact us for a no-obligation consultation. Contact us by e-mail info@LSLegaLUK.com or by phone +447535959450 and we would be happy to assist you.
