A Jamaican national employed in the UK was unable to provide documentation to complete the Employer’s ‘right to work’ checks, even though he did have a right to work in the UK. On this basis, his employer suspended him without pay and later dismissed him on the grounds of illegality. The Employment Appeal Tribunal decided that this could not be an illegality reason so was potentially unfair.

The employee failed to present full right to work documentation during a workplace audit and was subsequently dismissed for that reason. Properly conducted right to work checks simply excuse the employer from paying a penalty if it transpires that the employee did not have the right to work. Not undertaking the checks is not an offence. The employer’s erroneous belief to the contrary could not amount to illegality. However, it could amount to some other substantial reason for dismissal. As the employee could have worked he could also argue for the pay he lost while suspended.

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