Employment and Immigration Law Update - Right to work checks - family members of EEA nationals

Facts

Mr Badara was a Nigerian national, married to an EEA national residing in the UK. Divorce proceedings had commenced, but the marriage had not been dissolved. Under EU free movement rules he therefore had the right to work in the UK.

He worked for Pulse Healthcare Limited (Pulse) as a healthcare support worker. There was a clause in his contract that required him to provide evidence of his right to work in the UK upon request. When he started work, he had a residence card which confirmed his status. This expired on 20 January 2015. Pulse refused to let him work after this date, on the basis he had not supplied evidence of his right to work. Pulse made various enquiries of the Home Office’s Employer Checking Service (ECS), which were all negative.

Mr Badara brought various claims against Pulse, including for unlawful deduction of wages and direct and indirect discrimination on the grounds of race and/or nationality.

The Employment Tribunal found that Mr Badara did have an ongoing right to work in the UK. However, in light of the penalties that may be imposed on employers if found to have employed an individual who did not have the right to work, the Tribunal nevertheless found it was reasonable for Pulse to require proof of Mr Badara’s right to work, in the form of positive ECS checks. Therefore his claims were dismissed. Mr Badara appealed.

EAT Decision

The EAT found that the ET had failed to properly consider the case of Okuoimse, in which it was held that the provisions of the penalty scheme are irrelevant in circumstances where the individual has the right to work in the UK.

The EAT also noted that the Home Office guidance on right to work checks expressly states that individuals with a right to work under EU law do not have to register with or obtain documentation from the Home Office.

Therefore, the EAT found it was properly arguable that in a case where the individual had the right to work in the UK under EU law, it would be sufficient for them to prove that they met the EU rules (for example by proving they were a family member of an EU national) and the employer was not entitled to require a positive ECS check. If that were the case then it would not have been reasonable for Pulse to deny work (and wages) to Mr Badara in the absence of positive ECS checks.

The EAT also noted that by requiring a positive ECS check for non-EU nationals, Pulse had applied a provision, criterion or practice which placed Mr Badara at a substantial disadvantage when compared to someone who was an EU national. The EAT acknowledged the potentially legitimate aim of complying with immigration control and Home Office requirements, but queried whether the practice of relying on ECS checks was a proportionate means of meeting that legitimate aim.

The direct discrimination claim was dismissed. The claims for unlawful deduction from wages and indirect discrimination were remitted back to the Tribunal for reconsideration.

We now need to wait for a further ET decision, as to whether Pulse should have accepted other evidence of Mr Badara’s right to work in the UK, or if it was proportionate for them to require a positive ECS check.

The case is complicated by the fact that Pulse received negative replies from the ECS. When using the ECS, the outcome may be that the individual has the right to work, that they do not have the right to work, or that the ECS cannot confirm whether they have the right to work. Given the ECS erroneously told Pulse that Mr Badara did not have the right to work, it is perhaps understandable that Pulse felt compelled to stop him working.

In our experience it is not unusual to come across cases where the information provided by the ECS is incorrect. This places employers in a very difficult position, where the individual is adamant they can work, but the ECS is saying otherwise. In such cases we would recommend that employers take specialist advice to help them reach their own conclusion about the individual’s right to work.

The position is particularly complicated in cases involving family members of EU nationals. This is because their rights stem from EU law, not from a visa or document issued by the Home Office.

Our experience in both immigration and employment law means we have particular expertise in advising on tricky right to work issues.

This article is from the November 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals.