www.employmentappeals.gov.uk/Public/Upload/07_0295ResfhCNZT2.doc (Kelly)

 www.employmentappeals.gov.uk/Public/Upload/06_03250625fhCNDM.doc (Klusova)

Two recent cases underline the need for care when proceeding to dismissal for no longer having the right to work in the UK. In Kelly v University of Southampton, Dr Kelly, a US citizen, entered into employment with the University of Southampton ‘dependent on [you] gaining leave to remain and work in the United Kingdom’. Dr Kelly’s leave to remain expired and the University dismissed her with immediate effect, with no warning, no hearing and no right of appeal. In the meantime, Dr Kelly’s application for indefinite leave had been approved and granted. Dr Kelly argued that it would not have been a contravention of a statutory restriction to employ her – she accepted that her leave to remain in the UK ceased on 8 January 2005 but argued that she had permission to work under the Immigration Rules until 11 January 2006. The EAT agreed, finding that the University could not therefore rely on the potentially fair reason of contravening a statutory restriction for dismissing Dr Kelly.

In Klusova v London Borough of Hounslow, Ms Klusova, a Russian national, worked for Hounslow Council. The Council had concerns about her right to work in the UK and when it was informed that she had been detained and bailed by the police on condition that she did not take up work following which she failed to produce evidence of her application for indefinite leave to remain, she was summarily dismissed. The Council argued that there was some other substantial reason for her dismissal, namely that the Council had a genuine belief that her continued employment would be unlawful. The Court of Appeal agreed that this was a potentially fair reason; however, it found that the Council’s failure to follow the applicable statutory dismissal and disciplinary procedure rendered the dismissal automatically unfair. It also criticised the Council for its failure to consult with Ms Klusova over its concerns and its failure to consider Home Office guidance on immigration checks.

The clear message is to ensure all adequate checks and enquiries are made, statutory procedures followed and to ensure that there are proper communication channels between employee and employer before proceeding to dismiss. All sound common sense but employers are often keen to act promptly when concerned that they might be illegally employing staff with the right to work in the UK.