This was the question recently considered by the Employment Appeal Tribunal in a case involving a Jamaican national who was unable to provide his employer with the correct ‘right to work’ documents.

The EAT confirmed that where an employee has the right to work in the UK but is unable to provide documentary evidence of that right, that failure cannot be relied as the basis for a fair dismissal – unless the employer had a genuine but mistaken belief at the time of dismissal that they were employing the employee illegally.

The background

It is unlawful to employ someone subject to immigration control if they do not have leave to enter or remain in the UK or if they have valid leave but are not permitted to work. A breach risks a fine of up to £20,000 (and potential consequences for sponsorship licences) but there is a defence if an employer can show that they carried out certain documentary right to work checks (see the Home Office’s right to work checklist).

The facts

Mr Baker was employed by Abellio as a bus driver. He is a Jamaican national who has lived in the UK since childhood. As a result he is not subject to immigration control and does not require leave to enter or remain in the UK.

Following an internal audit, Abellio became aware that although the Home Office had confirmed that Mr Baker had the right to work in the UK he did not have the correct documentation to prove it. He was given an opportunity to obtain the required documents but did not do so. Abellio was of the view that it was employing him unlawfully and so he was dismissed by reason of illegality.

The decision

The EAT overturned the tribunal’s decision that Mr Baker had been fairly dismissed.

In order to rely on illegality as a potentially fair reason for dismissal, an employer must show that continued employment of the employee does in fact contravene a statutory enactment. Abellio could not rely on illegality as a fair reason for dismissal because it was not unlawful to employ Mr Baker without proof of the correct right to work documentation.

However, the dismissal could potentially be fair on the grounds of ‘some other substantial reason’ (SOSR) if Abellio could demonstrate that it had a genuine but mistaken belief that continuing to employ Mr Baker would be illegal without being provided with the documents which they believed to be required. The case has been sent back to the tribunal to decide whether on the facts there was a fair SOSR dismissal. The tribunal will focus on whether Abellio’s belief was reasonable based on their dealings with the Home Office and UK Visas and Immigration.

In practice

• Ask all job applicants for documentary evidence of their right to work in the UK, regardless of their nationality. Singling out applicants from certain backgrounds for immigration status checks risks race discrimination claims. Make job offers conditional on the employee having and maintaining the necessary permission to work in the UK.

• Conduct follow-up right to work checks as appropriate e.g. on those with time limited permission to live and work in the UK.

• Keep records of all checks carried out.

• On becoming aware that an employee’s employment is in breach of immigration rules, it may be possible to rely on illegality as a fair reason for dismissal.

• If, however, it turns out that the employee did have the right to work in the UK, the dismissal could be a fair SOSR dismissal – provided there was a genuine but mistaken belief at the time of dismissal that the employee was being employed illegally.

• Whatever the reason for dismissal always follow a fair procedure (including some form of investigation, meeting, consideration of alternatives); and document the process and related correspondence.