Right to Work and Unfair Dismissal

The Employment Appeals Tribunal (EAT) has recently considered the fairness of a dismissal in circumstances where an employee failed to present full right to work documentation as part of a workplace audit. The case raises questions about the extent of an employee’s obligations and the reliance which an employer may place on a failure to comply with its procedures.

In the instant case, the employee – a Jamaican national – had the right to live and work in the United Kingdom pursuant to indefinite leave to remain being granted to him. He was asked – as part of a company-wide audit – to provide correct documentation evidencing his right to work. The employee was unable to do so and was suspended without pay, before being given the opportunity to obtain the necessary evidence.

Interestingly, it was not disputed that the employee had the right to remain in the UK, as the Home Office confirmed the same. However, the employer subsequently dismissed the employee on the basis that it would be illegal to continue employing him if he could not provide the correct documentation to show he had the right to work.

The employee claimed unfair dismissal and initially was unsuccessful before an Employment Tribunal. On appeal, however, the EAT concluded that it was not illegal to employ someone who was not subject to immigration control, as was established in the employee’s case. It simply needed to be established that the employee was not subject to immigration control and, having done so, it was then wrong for the employer to believe that it could not continue to employ him simply because he could not provide additional documentation.

However, the EAT also considered that the employer could rely on an alternative reason for dismissal, namely a mistaken belief that it could not continue to employ the individual, which would amount to some other substantial reason. The case has been remitted back to the Employment Tribunal on this point.

In addition, the EAT found that it was unlawful to place the employee on unpaid suspension prior to his dismissal. On the basis it was not illegal to employ him, there was no basis on which they could legally withhold wages from him.

The case highlights the difficulties employers have in balancing the obligations to provide right to work documentation against the impact of dismissing an employee who cannot provide such documentation. Had the Home Office information been incorrect regarding this employee’s immigration status, the employer would not have had any defence against a civil penalty or criminal sanction had it transpired the employee had no right to remain in the UK. It may well be the case, therefore, that dismissal is deemed a ‘safer’ option – ‘at least on some other substantial reason’ grounds – as opposed to a fine of up to £20,000 and the potential loss of a sponsorship licence.