In Baker v Abellio London Ltd, the EAT overturned a decision that a dismissal was fair where an employee had the right to work in the UK but had failed to produce right to work documents.

Mr Baker, a Jamaican national with the right to work in the UK, was a bus driver for Abellio. In 2015, Abellio undertook a right to work audit on all employees. Mr Baker could not produce the necessary documents and was suspended without pay.

The employer allowed Mr Baker time to produce the documents but he failed to do so and was dismissed for illegality despite the fact that Abellio had been informed by the Home Office that Mr Baker did have the right to work in the UK.

Mr Baker brought claims for unfair dismissal and unlawful deductions from wages (relating to the period of unpaid suspension) in an employment tribunal. The tribunal found that he had been fairly dismissed for illegality. In the alternative, it found that Mr Baker had been fairly dismissed for some other substantial reason (SOSR).

On appeal to the EAT, this decision on illegality was overturned and the case was remitted to the tribunal to consider whether the dismissal was fair for SOSR. Despite the fact that Mr Baker had withdrawn his unlawful deductions from wages claim, the EAT also remitted this claim back to the tribunal.

The EAT held that the potentially fair reason for dismissal could not be illegality as his employment was not in fact in contravention of any law. Abellio was not breaking the law which prohibits an employer employing someone who is subject to immigration control. Obtaining right to work check documents from an employee is not a legal requirement. Rather, carrying out a right to work check and obtaining the required documents provides a statutory excuse to the employer which protects them from receiving a fine where the person does not have the right to work. Although Abellio believed that it was illegal to continue to employ Mr Baker in these circumstances, this was not the case. The dismissal for illegality could not therefore be fair.

Employers can be placed in a difficult position when employees cannot produce the correct right to work documents. On the one hand, they must take into account the maximum fine of £20,000 which can be applied when an employer employs someone who does not have the right to work in the UK. On the other hand, they must consider the risks of a claim where the employee does in fact have the right to work. Employers may be best advised not to rely on illegality as the potentially fair reason for dismissal but to dismiss for some other substantial reason. They should also go through a fair dismissal process. Employers should note that they cannot rely on advice from the Home Office as to whether someone has the right to work in the UK. If Home Office advice proves later to be incorrect, the employer could still be subject to a fine unless the proper document checks have been carried out.

It was recently announced by the Insolvency Service that twenty directors have been disqualified for periods up to seven years for employing illegal workers following investigations into restaurant and takeaway businesses. Along with disqualification and fines, employers can also face criminal prosecution in these circumstances. Further information on this action is available here.