The Employment Appeal Tribunal has recently held in the case of Baker v Abellio London that an employer which dismissed an employee who was not subject to immigration control, but who could not provide documentary evidence of his right to work in the UK, was not able to rely on illegality as a fair reason for the dismissal.
Background
The Claimant, Mr Baker, was a Jamaican national and had come to the UK as a child. He was not subject to immigration control and his employer had always accepted that the Claimant had the right to live and work in the UK. The Claimant had been employed by Abellio for 2 years and had not been asked to produce evidence of his right to work lawfully in the UK at the start of his employment.
However, Albion subsequently carried out an audit to check its employees had the right to work in the UK. The Claimant explained that he had the right of abode and therefore that he had the right to work in the UK but that his Jamaican passport had expired. He later obtained a new passport but still did not have the up to date right of abode documentation in his new passport. Therefore, the Claimant was unable to provide current evidence of his lawful right to work in the UK.
Consequently, the Claimant was dismissed by his employer. The dismissal letter stated: “given that it is a requirement by law to have the necessary documentation to work which you have failed to provide, your employment is terminated on today’s date by reason of [illegality].” The Claimant subsequently lodged a claim for unfair dismissal.
Decision
Unfair dismissal
At first instance, the Employment Tribunal held that the dismissal was fair and that the reason for the dismissal was illegality on the basis that there was a legal obligation on employers to obtain specific documentary evidence that employees have the right to work in the UK. Alternatively the Tribunal took the view that that the Claimant was fairly dismissed for some other substantial reason in that he had refused to obtain evidence to demonstrate that he had the right to work in the UK. .
The Employment Appeal Tribunal (“EAT”) subsequently overturned the Employment Tribunal’s decision. In doing so the Judge considered s.15 of the Immigration, Asylum and Nationality Act 2006 which provides that it is unlawful to employ someone who is subject to immigration control if they do not have valid leave to enter or remain in the UK. The Judge held that s15 did not apply to the Claimant because it was accepted that, as he had the right of abode, he was not subject to immigration control.
Furthermore, the EAT confirmed that there was no obligation on an employer to carry out right to work checks and to obtain specific documentation from employees as instead the relevant legislation gives the employer an exemption from a civil penalty if it transpires the person does not have the right to work.
The employer tried to argue that, in the alternative, it had dismissed the Claimant for some other substantial reason on the basis that it had dismissed him due to a genuine but incorrect belief that his employment was illegal because the Claimant had not provided evidence of his right to work. The EAT Judge held that the reasonableness of the belief should be taken into account in circumstances where the dismissal was based on a mistake belief. The issue of whether the dismissal was fair on the basis of mistaken belief was remitted to the Employment Tribunal.
Unlawful deduction from wages
The Claimant had also initially brought a claim for unlawful deduction of wages as the employer had suspended the Claimant without pay when the Claimant had failed to provide documentary evidence of his right to work. The main issue before the EAT was whether the Claimant had withdrawn the claim. However, the Judge made a number of comments about whether or not it was lawful to suspend the Claimant without pay. The Judge felt that, as a matter of contract, the Claimant may well have been entitled to be paid during the period of suspension. Further, as it was accepted in this case that the Claimant had always had the right to work, the Judge stated that it was almost inconceivable that there would have been a finding other than that Claimant was entitled to be paid whilst suspended. The only basis upon which it may have been lawful to withhold wages was if the person had been working illegally and this was not the case. The EAT reinstated the claim for unlawful deduction of wages claim and the matter was remitted to the Employment Tribunal.
Comment
This case highlights the tension employers may face in relation to immigration and employment law. Employers are understandably reluctant to employ individuals who are unable to demonstrate that they have the right to work in the UK by providing the specific documentation referred to by the Home Office.
However, there are circumstances where employees may in fact have the right to work but not be able to provide the documentation. In these circumstances this case confirms that the employer cannot rely on illegality as the reason for dismissal.
If the employer accepts that the employee has the right to work but the employee is unable to evidence this, the employer has to decide whether to continue to employ that individual. If they do so, the employer runs the potential risk that they were wrong and the person does not have the right to work. Alternatively the employer may decide to dismiss the person and face the risk of an unfair dismissal claim. In some cases employers may choose to dismiss the employee and risk the unfair dismissal claim as the consequences of employing someone illegally are significant and include a civil penalty of £20,000 and the possible revocation of the employer’s sponsor licence.
In some cases it can be difficult or even impossible to determine if an employee has the right to work and in such cases employers will generally take the cautious approach and dismiss. It is important in such cases that a fair process is followed first and the employee is given a reasonable chance to prove their right to work. It is also important to make it clear that the reason for the dismissal in these circumstances is some other substantial reason on the bass that the employer reasonably believes that the person does not have the right to work in the UK and that the employee has not been able to provide evidence of that right. It is generally not advisable to rely on illegality in case it later transpires that the person did in fact have the right to work.
It is also common for employers to suspend employees without pay when investigating whether someone has the right to work in the UK. This case confirms that it is likely that the employee will successfully be able to pursue a claim for unlawful deduction from wages if he is able to convince the Employment Tribunal that he did in fact have the right to work in the UK. The decision in this case also indicates that if the person was genuinely working illegally this may prevent them from succeeding with an unlawful deduction from wages claim.
Kerry Garcia