An employer cannot fairly dismiss an employee for illegality simply because they do not provide the correct right to work documentation.
It is unlawful for an employer to employ someone who is subject to immigration control. "Immigration control" is where the individual does not have valid leave to enter or remain in the UK, or they have valid leave but are not permitted to work. Employers who breach this are liable to a penalty. However, the employer will have a "statutory excuse" from the penalty if they can show that they have correctly checked immigration documentation.
Mr Baker, a Jamaican national, worked for Abellio London Ltd, a bus company. He has the right to work in the United Kingdom and is not under immigration control.
Abellio, as part of a workforce immigration audit, asked Mr Baker to provide documentation showing his right to remain in the United Kingdom. Mr Baker did not have a UK passport, and his Jamaican passport had expired. On being lent money by Abellio to do so, he successfully applied for a passport. Having sought advice from the Home Office, Abellio told Mr Baker that the passport was insufficient to provide Abellio with a statutory excuse, and that he would need to complete a "No Time Limit" visa application. Mr Abellio did not do so, saying that he could not afford it and also that he did not need it as he was allowed to work. Mr Baker was invited to a meeting to discuss his continued employment, and told that if he did not bring the required paperwork it was likely that his employment would be terminated. Mr Baker did not attend the meeting, and his employment was terminated. The reason given for the termination was "illegality", which is one of the five potentially fair reasons for dismissal. Mr Baker's internal appeal was unsuccessful, and he brought a claim of unfair dismissal against Abellio.
The Employment Tribunal found that Mr Baker had been fairly dismissed by reason of illegality. The Employment Judge said that, "his employer could not continue to employ him without contravening its obligations…to obtain specific documentary proof that [he] had the right to work in the UK.".
The Employment Judge also found that, in the alternative, Mr Baker had been fairly dismissed for some other substantial reason. Mr Baker appealed to the EAT.
Mr Baker argued that Abellio had not established a fair reason for the dismissal. He said that it was not illegal to employ him. A mistaken belief, however genuinely held, that Abellio would be in breach of a legal duty by employing him did not give Abellio grounds to dismiss him for illegality. The EAT agreed with Mr Baker, holding that the Employment Tribunal was wrong to hold that Abellio was legally obliged to obtain specific documentary evidence of Mr Baker's right to work. The legislation does not impose an obligation on the employer to obtain documents, although doing so would give the employer a statutory excuse for a breach. Failure by Mr Baker to provide the documents did not therefore make his employment illegal. As Mr Baker was not under immigration control, his employment was not illegal for that reason either. Accordingly, Abellio had not established illegality as a fair reason for the dismissal.
Failure to provide the documents could potentially constitute a fair dismissal for some other substantial reason, this reason being that Abellio believed it would be a contravention of the law if they employed Mr Baker without being provided with the documents which they believed to be required. A genuine but erroneous belief can potentially be a fair dismissal for some other substantial reason. However, the EAT held that the reasonableness of the belief in the reason for the dismissal should be taken into account in cases where a belief is mistaken. Abellio had contacted the Home Office and UK Border Agency, but the Employment Tribunal had not considered full evidence about what information Abellio had given to these authorities when seeking advice, and it was wrong in the absence of this to decide that the dismissal was fair.
The case was remitted to an employment tribunal to consider whether the dismissal for another substantial reason was fair.
What does this mean for employers?
Employers should continue to make sure that they perform full right to work checks. Even if an employer believes that the employee has the right to work and this has been confirmed by the Home Office, the employer will have no defence if the Home Office advice is later proved wrong unless the employer has conducted the right to work check. The civil penalty can be up to £2,000, and the penalty can have adverse consequences for any sponsorship license that the employer holds.
If an employee does not have the right to work in the UK, the employer will be able to rely on the fair reason of illegality. However, if the employee does not provide the correct documents, the employer should not assume that it is illegal to employ them, but should thoroughly investigate their immigration status. Before dismissing for failure to provide the correct documents, the employer must make sure that it has followed a fair procedure (including a full investigation and formal meetings with the employee) so that it can establish that the dismissal is fair in all the circumstances.