Right to work checks and dismissals
Baker v Abellio London
The Claimant was a Jamaican national, not subject to immigration control, and worked for over two years as a bus driver for the Respondent. He was known to have Indefinite Leave to Remain in the UK, however, after carrying out an audit to ensure that their employees had the correct documentation to show their ‘right to work’, it transpired that the Claimant’s passport had expired (and thus so had the endorsement proving his right to work).
The Respondent then suspended the Claimant without pay and subsequently dismissed him when he was unable to provide evidence of his right to work on the basis that they considered his continued employment would amount to a contravention of an enactment. The Respondent felt (and the Employment Tribunal agreed) that as he was not able to evidence his right to work in the UK, they would be unable to rely on the statutory excuse under section 15 of the Immigration, Asylum and Nationality Act 2006 (“IANA 2006”) and as such they were able to fairly dismiss the Claimant for illegality.
The EAT overturned the Employment Tribunal’s decision on the basis that the IANA did not apply to the Claimant, as he was not subject to immigration control. In any event, as there is no requirement in the IANA to obtain right to work documents (as it simply excuses the employer from civil penalties) illegality could not apply to the dismissal. The EAT did however recognise that dismissal for “some other substantial reason” (SOSR) could be fair if the Respondent had a genuine but erroneous belief that employing the Claimant was illegal. The fairness of the SOSR dismissal was therefore remitted to the Employment Tribunal for reconsideration.
A further issue was raised in relation to the Claimant’s withdrawal of a wages claim for the period of time he had spent on suspension. During this time, the Claimant had the right to work and therefore should have been paid. Due to the fact that the Claimant had not been legally represented, the wages claim had been dismissed as it appeared to be “unanswerable”. The EAT allowed the appeal against the dismissal of the wages claim as it considered this to be a “rare case” where a withdrawal could be overturned.
The EAT ordered the reinstatement of the withdrawn wages claim and remitted this point, and the fairness of the dismissal, back to the Employment Tribunal for rehearing.
The overlap between immigration and employment law where there are concerns over an individual’s right to work is complex. If you have an employee who has been unable to provide right to work documents and you are considering dismissal, we recommend that the following options are considered:
In order to be able to dismiss fairly for illegality you must be able to show that the employee's continued employment would actually contravene a statutory restriction. As the case above highlights it is not sufficient to show that you simply believed that continued employment would breach the right to work requirements.
The alternative argument is to dismiss for SOSR on the basis that you have a reasonable belief that the employee doesn’t have the right to work. In order to be able to show you have reasonable grounds for dismissing, you would need to show you have conducted some form of investigation.
Whether or not notice is payable will depend on the circumstances behind the dismissal (e.g. whether dismissal is because the individual has failed to provide the correct documents or because there are greater concerns about the individual’s right to work).
It may also be possible to dismiss an employee summarily for gross misconduct. This type of dismissal could apply in situations where, having requested the employee to produce their right to work documents, they fail to do so. This type of dismissal would only be appropriate if there has been a persistent failure and/or unwillingness to cooperate with requests to provide the documentation such that it amounts to severe insubordination and/or a failure to comply with a reasonable management instruction. Given the Respondent’s repeat requests for the relevant documentation, it is curious that this option did not appear to have been considered by the Respondent.
This case highlights the importance of establishing the correct reason for dismissal. Whilst the Claimant’s claim is ultimately likely to fail, the Respondent could have avoided such prolonged litigation had it considered the reason for dismissal more carefully.
It is important to remember that each case will turn on its own facts and therefore it is advisable to seek legal assistance before making any decisions.