In the case of Nayak v Royal Mail Group, the Employment Appeal Tribunal (EAT) decided that Royal Mail acted reasonably in concluding that Mr Nayak was working illegally when he did not provide evidence of his right to work, even though the check was not a statutory right to work check.

When Mr Nayak’s employment began, Royal Mail did not undertake the statutory check. It would therefore have had no statutory excuse if he was found to be working illegally. Mr Nayak did in fact retain evidence of his right to work for a number of years. When he applied to extend his leave to remain in the UK, Royal Mail sought evidence that he had kept his right to work. This was not required by the statutory checks because his employment started before repeat checks were introduced. Royal Mail chose in any event to verify his right to work in line with its policy of carrying out supplementary right to work checks on workers every six months.

It initially used the Home Office’s Employer Checking Service, which specifically provides information about employees’ right to work during ongoing applications and appeals. However, it failed to get a clear reply and so put the burden on Mr Nayak to prove he continued to have a right to work. The EAT decided that it was entitled to regard his failure to comply as reasonable grounds for believing he was working illegally.

The case must be treated with extreme caution. The Home Office expects employers, in these circumstances, to use the Employer Checking Service; this is the only type of evidence the Home Office compliance officers will accept. It is therefore somewhat surprising that an employer has been able to impose an expectation that a migrant worker should instead produce different evidence of his right to work and then dismiss him for not complying.