All employers have an obligation not to employ illegal workers under section 15 of the Immigration, Asylum and Nationality Act 2006.

Getting this wrong can lead to:

  • criminal penalties;
  • civil penalties of up to £20,000 for each illegal worker;
  • possible imprisonment for the employer and the worker; and
  • bad PR, as employers can be named and shamed on the UK Visas and Immigration (UKVI) website.

The good news is that employers have a potential defence to the offence of employing an illegal worker, which is known as the “statutory excuse”. In brief, this is available provided that an employer conducts right to work checks on employees before they commence employment. This involves taking copies of specified documents identifying the employee and their immigration status.

The bad news is that employers may face unfair dismissal or discrimination claims if they breach employment law in an attempt to comply with right to work obligations, which is what happened in the EAT case of Baker v Abellio London.

Mr Baker was a Jamaican national who was known to have the right to live and to work in the UK. His employer, Abellio, carried out right to work checks on its employees, in order to avoid the offence of employing illegal workers and to benefit from the “statutory excuse”.

As Mr Baker did not provide satisfactory documentary evidence of his right to work in the UK, Abellio suspended him (without pay) and ultimately dismissed him. The employment tribunal held that this was fair, but the EAT took a different view.

In situations where continuing to employ an employee will involve the employer or the employee breaking the law, an employer can rely on the potentially fair reason of “contravening a restriction imposed by an enactment” (commonly referred to as “statutory restriction” or statutory illegality) to dismiss that employee, subject to following a fair procedure.

However, to rely on that “statutory restriction” reason, it must actually be the case that continuing to employ the employee is illegal. If you are wrong about that, you cannot rely on that reason to dismiss, and a dismissal on those grounds will be unfair. This was the case with Mr Baker.

As Mr Baker was not subject to immigration control, Abellio was not obliged to check his right to work. They simply did so in order to benefit from the “statutory excuse”, and presumably to treat all employees consistently. Dismissing him for not providing satisfactory documents in this situation was found to be unfair.

This decision seems very harsh, especially in view of the Home Office Code of Practice “Avoiding unlawful discrimination while preventing illegal working”, which specifically recommends that employers should consistently carry out checks on all prospective employees, not just those who appear to be of non-British descent, to avoid race discrimination.

So where does Mr Baker’s case leave you?

Well, all is not lost, because the EAT also found that Abellio might be able to rely on another of the potentially fair reasons for dismissal, namely "some other substantial reason", if they genuinely believed (albeit incorrectly) that Mr Baker’s employment was illegal. The EAT referred this point back to the employment tribunal to consider.

What does this mean for you or your business?

This case does not really change the current legal position regarding right to work checks and unfair dismissal and discrimination, which is as follows:

  • You can only dismiss an employee based on “statutory restriction” if you know for certain that continuing to employ the employee is illegal.

If you are wrong about that, you cannot rely on that reason to dismiss, and a dismissal on those grounds will be unfair.

  • However, you may be able to dismiss the employee for “some other substantial reason” if you carry out a reasonable investigation and have a genuine belief that continuing to employ them would be illegal.

Therefore, to minimise any unfair dismissal risks, you should always investigate the employee’s right to work as fully as possible before dismissal.

This case does not mean that you should stop conducting right to work checks on all employees, as failing to do so:

  • would cause you to lose your “statutory excuse” (which helps you to avoid or reduce civil penalties because it shows UKVI that you have a “system” in place for right to work checks and that you are doing your best); and
  • could also lead to race discrimination claims.

What should you be doing now?

  • Continue carrying out right to work checks consistently on all employees before they commence employment with you.

If they do not have right to work, you should discover this before you employ them, and you will then avoid the offences of knowingly employing an illegal worker or employing a worker who you reasonably believe might be illegal.

  • Continue carrying out right to work checks, as required, in respect of existing employees, e.g. when you believe their immigration status may have changed.
  • If an employee cannot provide satisfactory right to work documents, investigate this as fully as possible before dismissing them.

A thorough investigation might include:

  • Giving the employee more than one opportunity to produce their documents;
  • Contacting the Home Office for confirmation regarding the employee’s right to work in the UK (the Employer Checking Service is available for this);
  • Suggesting that the employee make a data subject access request to the Home Office seeking confirmation of their status (as immigration applications/appeals can sometimes take time to conclude); and
  • Warning the employee that a failure to provide evidence of immigration status could result in their dismissal.

If you still cannot establish immigration status but you genuinely believe they are an illegal worker, you should be able to fairly dismiss for some other substantial reason.