In Nayak v Royal Mail Group Ltd (UKEATS/0011/15/SM), the EAT had to decide whether a dismissal due to an employer's genuine belief that the employee was not permitted to work in the UK was fair.

Facts

Mr Nayak was employed by Royal Mail Group (RMG) between 7 January 2008 and 9 May 2014, when his employment was terminated because RMG believed he no longer had the right to work in the UK. When he started work, he had a visa that expired on 15 April 2009; he then had a Tier 1 (post-study) visa that expired on 1 December 2010; before his post-study visa expired, he applied for a Tier 4 (general) student migrant visa. His application was initially refused but he made a successful appeal to the immigration tribunal in May 2011 and his application was then passed to the Home Office for consideration and processing.

In March 2012 RMG sought confirmation from the Home Office regarding Mr Nayak's right to work in the UK. The Home Office confirmed that he had the right to work in the UK 'on the basis of an outstanding appeal'. In August 2012, January 2013 and February 2013 RMG wrote to Mr Nayak asking him to provide updated proof of his right to work in the UK. He did not respond. In May 2013 RMG wrote again to the Home Office. They confirmed that, because Mr Nayak had commenced employment before 29 February 2008 (when the rules changed), no further checks were required as long as document checks had been carried out at the start of his employment and copies of the original documents checked by RMG remained on file. RMG had not done this.

Between December 2013 and May 2014 RMG made further enquiries of Mr Nayak to try to establish his immigration status. He was told that the right to work could only last while his application for his Tier 4 visa remained outstanding. As his application for a new visa had been made over four years earlier, it was not safe to assume that it was still pending. Mr Nayak was warned that a failure to provide evidence of his immigration status could result in his dismissal. He failed to produce satisfactory documentation and was dismissed. He appealed and was given additional time to prove his status. RMG suggested that he make a data subject access request to the Home Office seeking confirmation of his status, which he failed to do. The decision to dismiss him was upheld and he brought a claim for unfair dismissal.

Employment tribunal decision

The employment tribunal (ET) rejected Mr Nayak's claim. It held that there was sufficient evidence to conclude that a reasonable employer would not be satisfied that Mr Nayak's visa application remained pending. Nr Nayak appealed.

EAT decision

The EAT dismissed the appeal and upheld the ET's decision. It held that the ET had been entitled to conclude that there was sufficient evidence to support RMG's genuine and reasonable belief that Mr Nayak no longer had the right to work in the UK. His dismissal was both substantively and procedurally fair. There was ample evidence to show RMG's attempts to establish Mr Nayak's immigration status over a period of several years and his persistent failure to co-operate. RMG had taken reasonable steps to investigate the position and its admitted failure to carry out the initial document check had no bearing on the fairness of the dismissal. RMG could not be expected to wait indefinitely and the timeframe given to Mr Nayak in which to respond was reasonable.

Comment

This decision is helpful for employers where they are unsure of an employee's immigration status and are unable to establish it. Where it is clear that an employee does not have the right to work in the UK, employers can dismiss because of a statutory restriction (ie that continued employment would breach a statutory enactment). This case shows that, where an employer suspects - but does not know - that the employee does not have the right to work here, it is possible to dismiss fairly if they hold a reasonable and genuine belief that this is the case, provided they have carried out a reasonable investigation.

RMG had a policy of requiring all employees subject to time limited immigration control to provide renewed proof every six months of a continuing right to work in the UK. The EAT confirmed that this was a reasonable policy.

Note that the Immigration Bill proposes extending the existing criminal offence of knowingly employing an illegal migrant so that it would also apply where an employer has reasonable cause to believe that a person is an illegal worker.