The Employment Appeal Tribunal (EAT) has upheld an Employment Tribunal’s decision which found that an employee was fairly dismissed due to the reasonable belief of his employer that he was no longer permitted to work in the UK.
By way of reminder, there are five potentially fair reasons for dismissal and these are misconduct, redundancy, capability, illegality and some other substantial reason. In Nayak v Royal Mail Ltd, the EAT considered whether the employer’s genuine and reasonable belief that the employee was no longer permitted to work in the UK was sufficient to show that his dismissal was for some other substantial reason.
Mr Nayak commenced employment with the Royal Mail in 2008 at which time he held a visa due to expire in 2009. He was subsequently granted a Tier 1 (Post Study) visa which expired in 2010. Prior to the expiry of this visa, he applied for a Tier 4 (General) student migrant visa. After an initial refusal, Mr Nayak won his appeal to the Immigration Tribunal and his application was sent to the Home Office for processing.
The Royal Mail was advised by the Home Office in 2012 that the employee had the right to work in the UK at that time due to his outstanding appeal. Following this confirmation, the company monitored the employee’s immigration status in accordance with its policy of checking every six months and contacted Mr Nayak on multiple occasions. Mr Nayak did not respond to the letters nor did he provide any documentation regarding his immigration status. The Royal Mail met with Mr Nayak and warned him that if he failed to provide evidence of his right to work in the UK then he would be dismissed. He failed to do so and his employment was terminated in May 2014.
Mr Nayak appealed and was granted a further 42 days to provide the requested documentation. The Royal Mail even suggested that he make a data subject access request to the Home Office to confirm his right to work. Mr Nayak neither contacted the Home Office nor provided further evidence and the decision to dismiss him was upheld.
He subsequently submitted a claim of unfair dismissal to the Employment Tribunal (ET) which dismissed the claim and held that there was sufficient evidence to conclude that a reasonable employer would not be satisfied that Mr Nayak’s immigration application remained outstanding. Mr Nayak appealed the ET’s decision.
The EAT reiterated that an employer’s genuine and reasonable belief can constitute some other substantial reason and can therefore amount to a fair reason for dismissal. No actual knowledge of contravention of a statute is required, unlike when dismissal is due to illegality.
The EAT noted four pieces of evidence as being a key indication of the Royal Mail’s genuine and reasonable belief that Mr Nayak no longer had the right to work in the UK. These were:
- The Royal Mail had made enquiries at the Home Office before making the decision to dismiss;
- The fact that the Royal Mail had been unable to obtain a response directly from the Home Office regarding Mr Nayak’s current immigration status;
- The Royal Mail’s repeated requests to Mr Nayak over a long period to provide such evidence; and
- Mr Nayak’s continuing failure to co-operate with the Royal Mail. By contacting the Home Office himself, as requested, the EAT found they would have been under a duty to respond to him.
It was further held that the Royal Mail had taken reasonable steps to investigate the matter and that there was no procedural unfairness in making the decision. Additionally, the fact that the Royal Mail had failed to make the relevant immigration document checks back in 2008 had no bearing on the fairness of the dismissal.
Employers may be fined up to £20,000 if an employee does not have the right to work in the UK and also risk criminal liability, as well as potentially losing their sponsor licence. This means that many employers prefer to err on the side of caution and dismiss an employee if they are not satisfied that the employee has the right to work in the UK.
Nayak serves as a useful reminder that it is often preferable to dismiss an employee who you believe is no longer entitled to work in the UK for some other substantial reason, rather than on the grounds of illegality. Instead of the employer having to prove that it actually knew that the employee no longer has the right to work and prove that this was indeed the case, the employer must only show that it had a genuinely held reasonable belief that the employee did not have the right to work in the UK. This is particularly the case when it is difficult to be certain whether or not the employee has the right to work in the UK.
The case also emphasises the importance of investigating the circumstances thoroughly and giving the employee a chance to respond and to provide evidence of his immigration status before making the decision to dismiss.