In the recent case of Kurumuth v NHS Trust North Middlesex University Hospital the EAT held that it was reasonable for an employer to dismiss an employee when it was not satisfied that she had a legal right to work in the United Kingdom.
The Claimant, a Mauritian, came to the UK with her family in 1992 with a work permit. In 1997 she was refused further leave to remain in the UK but appealed that decision. The Claimant began working for the Respondent as a “bank” worker in 2001 and was permanently employed in 2003 at which time she showed the Respondent a letter from the Home Office which said that she was entitled to continue to take on paid work until her appeal was determined. At the time of the EAT’s judgment the Claimant’s immigration appeal was still pending determination.
Following introduction of the government’s new points based system, the Respondent conducted a check on the Claimant’s right to work status. They met with the Claimant at a number of formal and informal meetings at which she was given the opportunity to say what her status was. The Respondent was dissatisfied with the response received and decided to instigate its disciplinary procedure. The Respondent also made checks via the UK Border Agency and took legal advice. Ultimately, having reviewed all of the information and formed the view that there was no evidence that the Claimant had any right to work, the Respondent dismissed the Claimant.
The Claimant brought, amongst others, a claim for unfair dismissal. Due to the absence of any procedure the Employment Tribunal ruled that the Claimant’s dismissal was procedurally unfair and awarded her a basic award. The tribunal, however, found that the dismissal was otherwise substantively fair and that the procedural defects made no difference to the outcome and so declined to award any compensatory award.
The Claimant appealed, arguing that the tribunal should have found that the dismissal was substantially unfair and that the tribunal ought to have determined that the Claimant had the right to work.
The Claimant accepted that the Respondent had a genuine belief that the Claimant did not have the right to work. As such, the Respondent satisfied the requirement of the unfair dismissal legislation to demonstrate a permissible reason for dismissal.
The EAT found that it could not make any decision about the Claimant’s legal right to work in the UK; that is an immigration decision to be determined by the appropriate authorities rather that the EAT (or the tribunal). The EAT ruled that they did not need to make a decision on the Claimant’s status in order to determine whether the Respondent had reasonable grounds for her dismissal.
The EAT agreed with the tribunal’s decision that the Respondent’s decision to dismiss had been reasonable and was not substantively unfair. An employer has to take such investigative steps which are reasonable in the circumstances before reaching its belief about immigration status. The Respondent did this but there was no clear position on the Claimant’s immigration status. The Respondent was entitled to err on the side of caution and form a genuine belief that the Claimant was not entitled to work.
This case highlights the importance of conducting a reasonable investigation before reaching a decision to dismiss based upon concerns over an employee’s immigration status.