It can often be difficult for employers to assess whether or not an employee who presents themselves as the family member of an EEA national has the right to work in the UK. In particular, difficulties can arise when the UKBA is processing an application from an individual and there is no current endorsement in the passport.
In the recent case of Okuoimose v City Facilities [13 Sep 2011, UKEAT/0192/AA/DA], the Employment Appeal Tribunal (EAT) confirmed the legal position; namely that EEA family members are entitled to work in the UK at all times and this was not affected by the failure to obtain a new immigration endorsement from the UKBA. In this particular case the EAT held that it was unlawful for the employer to suspend the EEA family member without pay whilst waiting for a UKBA endorsement to confirm their status.
We recommend that employers seek legal advice before taking any action whenever they are in doubt as to whether or not a person who presents themselves as the family member of an EEA national has the right to work in the UK.