Proving an employee's right to work - can you dismiss for lack of documentary evidence?

It is unlawful under immigration laws for employers to employ individuals that do not have current leave to enter or remain in the UK, or individuals who have leave but are not allowed to work in the UK. A breach of the law makes employers liable to a civil penalty. However the law does provide employers with a defence to employing an illegal worker, if they can provide evidence to show that they have conducted the required documentary checks on the individual’s right to work in the UK. But can an employer dismiss an employee for failing to provide documentary evidence?

In the case of Baker v Abellio London Ltd UKEAT/0250/16 the EAT overturned a tribunal decision which found that an employee was fairly dismissed for contravention of the law (illegality) when the employee failed to provide documentation on their right to work in the UK.

Under employment law, establishing whether a dismissal is fair depends on whether an employer can demonstrate a potentially fair reason for dismissing. There are a number of ‘potentially fair reasons’; the ones relevant in Baker v Abellio London Ltd were: illegality and some other substantial reason (SOSR).

Facts

Abellio employed Mr Baker as a bus driver. Mr Baker was a Jamaican national who had a right to live and work in the UK. Abellio required Mr Baker to provide documentation proving his right to work in the UK, however he could not provide it and was suspended from work in February 2015. He was then dismissed in July 2015 for failing to acquire the documentation after Abellio had given him the opportunity to do so. 

The Home Office confirmed Mr Baker’s right to live and work in the UK, however as Abellio did not have the documentation to afford them a defence, Abellio believed that continuing to employ Mr Baker would be illegal.  

Mr Baker brought a claim for unfair dismissal and unlawful deduction from wages during his suspension (unlawful deduction from wages claim was withdrawn and the tribunal dismissed the claim). The tribunal found that illegality had been established and was a fair reason for dismissal and in the alternative Mr Baker been fairly dismissed for SOSR. 

EAT decision

Mr Baker appealed and the EAT overturned the tribunal’s decision. An offence had not been committed as Mr Baker had the right to live and work in the UK. The employer’s defence against paying a civil penalty for unlawfully employing an individual who was subject to immigration controls does not place a requirement on an employer to obtain certain documentation. Abellio’s genuine but incorrect belief that it would be illegal to continue to employ Mr Baker did not therefore constitute illegality. However it could amount to SOSR and the EAT remitted the case to the tribunal to consider this.

Comment

While the EAT appear to have corrected the tribunal’s error in law, employers should remain cautious. Even if an employer believes an employee has a right to live and work in the UK, if the documentary checks are not carried out and an employee does not have a right to work in the UK, they will have no defence.

It is not only a civil penalty of up to £20,000 an employer could be faced with, employers should also consider the potential consequences this could have on sponsorship, licences and the wider business. An employer will need to weigh up the risk of not obtaining documentary evidence to secure a defence, against the risk of dismissing an employee. If the employer then choses to dismiss, they will have to rely on SOSR as a potentially fair reason as well as ensuring procedural fairness. We will need to wait and see however if Abellio succeed on a potentially fair reason now it has been remitted back to the tribunal.   

Chattertons can provide advice on all aspects on Employment and Immigration law. If you would like more information or advice on anything covered in this article, please contact Chattertons Employment and Immigration teams.