There have been two recent employment law decisions which may be of interest to businesses, HR managers, and others dealing with sponsored migrant workers.
A new Supreme Court case is a reminder that it is advisable to approach any immigration-related employment dispute with sensitivity.
Were a business to carry out a repeat right to work check and discover that a member of staff was illegally working, for example because the migrant's visa had expired, it is possible for the illegal migrant to be dismissed. If the employment is clearly illegal, then the employee cannot normally sue for unfair dismissal, notice pay, holiday pay, or unpaid wages. However, employers must still use care when dealing with such a situation.
The Supreme Court, in the recent case of Hounga v Allen, decided that a migrant could bring a discrimination claim against an employer, relating to the migrant's dismissal, even where the migrant was being employed illegally. The general principle of the case will apply to all employers; in particular, any illegal migrant who has suffered race discrimination before or leading up to a dismissal will now often be able to bring a tribunal claim. For example, if a line manager were to make racist remarks when implementing the dismissal or there has been a history of discriminatory treatment.
Dismissing transferred staff
In the case of Fuller v United Healthcare Services Inc, the Employment Appeal Tribunal decided that a US employee, who was transferred into the UK to become the managing director of his employer’s UK subsidiary and then dismissed, could not bring any claim to the employment tribunal and therefore could not challenge his employer’s decision to make him redundant. The employee claimed that his dismissal was both an unfair dismissal and discriminatory.
The case, however, should be regarded with caution as the court examined very closely the US employee's ties to the US. It found that they were very strong and that his ties to the UK were weaker than one would normally expect. For example, to avoid paying UK tax, he limited his time in the UK to no more than 180 days in the year and travelled between the US and other countries the rest of the time, whilst keeping most of his home life in the US.
A migrant who is assigned to the UK on a long-term basis under Tier 2 (Intra-Company Transfer) or who is sponsored under Tier 2 (General) in many cases will acquire UK employment rights, even if the assignment or employment is cut short by the employer. If, as in Mr Fuller’s case, the migrant continues to have very strong links with their home country and/or the migrant is absent from the UK during much of the assignment, then UK rights may not apply. In most cases, however, UK rights will apply, save where migrants are transferred into the UK on a short-term basis.