Written by Brabners LLP
The Employment Appeal Tribunal has found in a recent case that the dismissal of an employee was not fair where the employee in question was not subject to immigration control but could not provide any documentation evidencing his right to work in the UK.
The Immigration, Asylum and Nationality Act 2006 (“the Act”) makes it unlawful to employ an adult who is subject to immigration control and has either not got valid leave to enter or remain in the UK or who is not permitted to work in the UK. If in breach, an employer is liable to a civil penalty. There is a statutory excuse to the civil penalty if the employer can demonstrate that it undertook appropriate documentary checks.
The case of Baker v Abellio London Limited involved a Jamaican national who worked for the employer as a bus driver. Mr Baker has lived in the UK since childhood and has the right to live and work in the UK and does not require leave to enter or remain. In 2015, Abellio carried out an audit of their employees to check that they had the correct documentation which evidenced their right to work in the UK. Mr Baker was unable to produce any of the required documentation and as a result, was suspended without pay. Mr Baker was then subsequently dismissed for not providing proof of his right to work by reason of illegality. It was not disputed that Mr Baker had the right to work in the UK, this having been confirmed by the Home Office, but as Mr Baker could not produce the necessary documentation to demonstrate his eligibility and to provide Abellio with the statutory excuse under the Act, Abellio considered that his continued employment would amount to illegality. Following his dismissal, Mr Baker brought a claim for unfair dismissal. The Employment Tribunal found in favour of Abellio, confirming that they had established illegality as the reason for the dismissal and that as a result, the dismissal was fair. Mr Baker appealed the decision to the Employment Appeal Tribunal (“EAT”).
The EAT rejected the earlier decision, holding that Abellio had not established illegality as the potential fair reason for dismissal. The EAT confirmed that under the Act, the only relevant offence was to employ an adult who is subject to immigration control, which Mr Baker was not. They also confirmed that the Act does not impose an obligation on an employer to obtain certain documents, but only provides an excuse for an employer in the circumstances where they employ a person subject to immigration control if they have obtained certain documents. The EAT did, however, state that Mr Baker’s dismissal could be a fair one on the ground of “some other substantial reason” (“SOSR”) if Abellio had a genuine but incorrect belief that the employment of Mr Bajer was illegal in the circumstances. They remitted the claim back to the initial Tribunal to consider this point.
This case acts as a reminder of how important it is for employers to consider carefully the potential fair reasons before dismissing an employee. It remains to be seen in this case whether Abellio will be successful in demonstrating that the dismissal was fair on the ground of SOSR. Equally, the case highlights the importance of checking right to work documentation of employees prior to the beginning of their employment in line with Home Office guidance. Carrying out checks of documents can result in employers avoiding civil liability if illegal immigrants are found to be working for them. Where faced with similar circumstances to this case, an employer will have to strike a balance between the potential risks of not obtaining the statutory excuse under the Act against the potential risks of dismissal of an employee.
Disclaimer: This bulletin is for general guidance purposes only and should not be used for any other purpose. This article is written by Brabners and reproduced with their permission. Brabners is a Limited Liability Partnership.