The EAT has held in Kelly v University of Southampton that, as the University would not have committed an offence under the Asylum and Immigration Act 1996 by continuing to employ Dr Kelly after her leave to remain in the UK had expired, the dismissal was unfair.

Dr Kelly, a US citizen, held a post at the University of Southampton. Her work permit was valid until 8 January 2006 but a separate document issued by the UK immigration authorities stated that her leave to remain would expire a year earlier, in January 2005. The University dismissed Dr Kelly in January 2005 on the understanding that if she had no legal right to be in the UK they would be breaking the law by continuing her employment.

The EAT held, after considering the detail of the relevant statutory provisions, that the University would not have committed an offence by continuing Dr Kelly's employment as, under the Immigration Rules, she still had permission to work in the UK. Her appeal was allowed and she was found to have been unfairly dismissed.

Impact on employers

  • With the increasing number of foreign workers in the UK, this case is a useful reminder that employers need to look carefully at the technicalities of the Immigration Rules and the ambiguities that they can at times give rise to before dismissing an employee whose permission to work or leave to remain in the UK has apparently expired.
  • Employers should also note the EAT's comments that it will not always be reasonable to dismiss, even where the employee's continued employment would contravene Immigration Rules or any other enactment. It is necessary to consider all the facts and circumstances in such situations and not to treat dismissal as an inevitable outcome.