Failure to provide evidence of right to work not a fair reason to dismiss, says Employment Appeal Tribunal By Nath Gbikpi

Like (I suspect) many other practitioners, I often find myself speaking to a client’s employer to explain to them why my client has the right to work. The most typical example is where a client has submitted an application by post before the expiry of their leave. The document showing their right to work will usually expire before the application is decided. However, section 3C of the Immigration Act 1971 will automatically extend that person’s leave while their application is being decided. Therefore, although they may not have a valid document showing their right to work, they indeed have that right.

My client’s employer will often insist on seeing a document showing their right to work, and, if they cannot provide it, threaten them with dismissal. At that point, the first step would usually be to tell the employer they should use the Employer Checking Service, asking the Home Office for confirmation that the employee has the right to work. Not all employers will agree to do this. Some will do it only for the Home Office to send the wrong response, incorrectly stating that the employee does not have the right to work.

So are employers acting lawfully if dismissing a client who does not have the documents showing their right to work? 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.

Employer’s genuine belief as to immigration status critical

Without venturing too much into employment law, which I know very little about, for a dismissal to be fair:

1 The employer needs to have a fair reason to dismiss

2 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, including illegality or “some other substantial reason”. Abellio said that its reason for dismissing Mr Baker, a Jamaican national with the right to work in the UK but no documentary proof of that accepted fact, was 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, but 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. He had the right of abode or Indefinite Leave to Remain in the UK (which one is not clear from the judgment) 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. And:

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 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.

The final step – whether Abellio acting reasonably in all this – was remitted to the Employment Tribunal. Mrs Justice Slade helpfully stated that it will need to take into account what information the employer had and whether that was sufficient to consider whether section 15 of the Immigration, Asylum and Nationality Act 2006 was in play.

What does the judgment mean?

It is good news 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 (as Abellio was) – 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.

On the other hand, that does not solve the situation when employers are simply not satisfied that the employee has the right to work in the first place, which is often what happens.

Whilst Baker v Abellio is good news in cases where clients work for employers who accept that they have the right to work, those clients whose employers suspect otherwise will continue to rely on the Home Office’s often unreliable Employer Checking Service.

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