News & Insights

Should you give up or just keep chasing papers?

Ian Machray explores whether dismissing an employee for failing to provide evidence of a right to work in the UK can be a fair decision.

A breach of statutory law is one of the potentially fair reasons for a dismissal (often referred to as illegality). A recent case in the Employment Appeal Tribunal (EAT) considered illegality as a fair reason for dismissal in relation to an employer’s duty under the Immigration, Asylum and Nationality Act 2006 (IANA) to prevent illegal working.

Under IANA, an employer is liable to a civil penalty if they negligently employ someone who does not have the right to work in the UK. However, the employer is excused if they can show they have undertaken the proper document checks.

The case concerned Mr Baker, a Jamaican national with the right to live and work in the UK. When he started his job with Abellio he was not required to produce evidence of this right. At a later date, when asked to provide this evidence, he could not as his passport containing the endorsement had expired. Abellio consequently suspended him but gave him a further opportunity to provide the documentation. He failed to do so and, despite the Home Office confirming that he had the right to work in the UK, he was dismissed.

Mr Baker brought a claim for unfair dismissal. On appeal the EAT held that because he had the right to live and work in the UK, he was not subject to immigration control under IANA meaning the right to work checks did not apply. The EAT confirmed that IANA does not require employers to obtain right to work documents; its purpose is to excuse the employer from paying a penalty for unlawfully employing someone subject to immigration control.

The case highlights that failing to provide right to work documentation does not automatically mean that the employer is employing an illegal worker. Nevertheless, employers should be cautious before deciding not to insist that an employee provides right to work documentation. Even if the employer believes that an individual has the right to work it will not be a defence against civil liability if this later proves to be wrong.

Although the EAT held that Abellio could not rely on illegality as a fair reason for the dismissal, it upheld an alternative finding of the tribunal that the dismissal had been for some other substantial reason; that Abellio had genuinely believed that it was illegal to continue to employ Mr Baker. The EAT remitted the case back to the tribunal to consider whether a dismissal on this ground was fair. It will be interesting to see whether Abellio succeeds.