Yes, said the Employment Appeal Tribunal (EAT) in the case of Baker v Abellio London Limited [UKEAT/0250/16].

Background to Employer’s Right to Work Checks

Under the Immigration, Asylum and Nationality Act 2006, employers have a duty to prevent illegal working and will be liable to a civil penalty if they negligently employ an individual who is not entitled to work in the UK. An employer may also commit a criminal offence if it knew or had “reasonable cause to believe” that the employee did not have the appropriate immigration status.

An employer is excused from paying a civil penalty if it can show it:-

  1. Carries out “Right to Work” checks on all prospective employees before the employment starts;
  2. Conducts follow-up checks on those employees who have a time-limited permission to live and work in the UK; are required to provide documentary evidence of their right; or have an application pending;
  3. Keeps a record of all checks carried out; and
  4. Does not employ an individual they know, or has reasonable cause to believe, is an illegal worker.

The Facts of the Case

Mr Baker (the Claimant) was a Jamaican national who had lived in the UK since he was a child. He was employed by Abellio London Limited, the Respondent, and it was not disputed that he had the right to work in the UK.

In 2015, the Respondent carried out an audit of all of their workers’ rights to work in the UK. The Claimant was asked to produce one of a list of documents, which included his passport. The Claimant explained that he had the right of abode and the right to work in the UK but did not have a passport. The Claimant was advised he would be suspended without pay until he produced evidence of his right to work.

The Claimant obtained a passport, using a loan from his employer. However, he did not apply for a No Time Limit application to work in the UK stating that he could not afford it and, in any event, he did not need it as he had the right to abode under the Immigration Act 1971.

The Claimant’s employment was terminated on 6 July 2015. The Respondent stated that the reason for dismissing the Claimant was because, whilst he had the right to reside and work in the UK, his current documents did not provide the Respondent with a statutory excuse to allow him to work for the Respondent.

Decision of the Employment Tribunal

The Claimant brought a claim in the Employment Tribunal (ET) for unfair dismissal. The ET held that the Respondent had fairly dismissed the Claimant for some other substantial reason, namely that the Claimant didn’t provide documentation required to satisfy a “right to work” check and, accordingly, the Respondent could not continue to employ the Claimant without contravening its obligations under s15 of The Immigration, Asylum and Nationality Act 2006. The Employment Judge commented that:

“if they had continued to employ him then they would have been potentially liable for a substantial fine or criminal prosecution…I conclude that [the Respondent] did follow a fair process throughout… [and] their decision to dismiss fell within the range of reasonable responses given that he had been given a significant period of time to obtain the relevant documents and had been given funds to obtain them…”

Appeal to the Employment Appeals Tribunal

The Claimant appealed to the EAT, which held that the tribunal had erred in finding that the dismissal was fair. The EAT held that because the Claimant wasn’t subject to immigration control under the Immigration, Asylum and Nationality Act 2006, as he had a right to abode in the UK, the right to work checks did not apply.

The EAT confirmed that there is no obligation on employers to carry out the right to work checks. The purpose of the checks are to provide a defence to any civil or criminal liability if the employer unknowingly employs an illegal worker.

However, an employer may fairly dismiss an employee for some other substantial reason if it has a genuine and erroneous belief that employment was illegal. Accordingly, the fairness of the dismissal was remitted to the ET for reconsideration.

Commentary

An employer may fairly dismiss an employee if it has a genuine belief that the employment is illegal and contravenes the Immigration, Asylum and Nationality Act, it is important that the employer considers the employee’s status carefully prior to suspending and commencing a disciplinary process.

Although the EAT confirmed that there is no obligation on employers to carry out right to work checks prior to commencement of employment, the checks assist with an employer’s defence to any civil or criminal liability if the employer unknowingly employs an illegal worker and allows an employer to understand the immigration status of its employees. It is our recommendation that right to work checks are undertaken prior to the employment commencing and regularly during the employment relationship.