The EAT decision in Baker v Abellio London UK serves as a reminder that it is not a statutory requirement for an employer to obtain right to work documents from its employees (the production of such documents only provides a defence to employers should they engage an illegal worker), and therefore dismissal of an employee due to his failure to produce the documents cannot be a fair dismissal for breach of an enactment.

However, dismissal because of an employer’s genuine but mistaken belief that an employee does not have the right to work, because of their failure to produce documents, could be a dismissal for “some other substantial reason” and might be fair if it was reasonable to hold that mistaken belief.