The EAT has overturned the decision in Baker v Abellio London Ltd UKEAT/0250/16 where the Tribunal held that an employer had fairly dismissed an employee by reason of illegality when he could not produce documentary evidence of his right to work.

Mr Baker's employers Abellio conducted an audit of its workforce to check that all employees had the correct documentation to evidence their right to work in the UK. Although Mr Baker, a Jamaican national, had the right to live and work in the UK because he had the right of abode under the Immigration Act 1971, he was unable to produce the documentation requested by his employer to evidence this.

Mr Baker was consequently suspended by Abellio without pay. Abellio then gave Mr Baker the opportunity to provide the necessary documentation, he failed to do so and was dismissed by reason of illegality.

Mr Baker issued claims for both unfair dismissal and unlawful deductions from wages for his unpaid suspension against Abellio.

The EAT overturned the Employment Tribunal's decision that Abellio had established illegality as the potentially fair reason for dismissing Mr Baker. Abellio had incorrectly concluded that it was illegal to continue to employ Mr Baker because he could not provide certain documents evidencing his right to work.

Baker v Abellio London Ltd highlights that failing to provide right to work documentation in the form requested by an employer does not mean that the employer is employing an illegal worker, or that it is illegal to continue to employ someone who has not provided the correct right to work documents.

Section 15 of the Immigration, Asylum and Nationality Act 2006 (IANA 2006) makes it unlawful for an employer to employ someone who does not have the right to work in the UK.

Section 15(3) IANA 2006 provides an employer with a statutory defence to a civil penalty, if the employer has undertaken certain documentary checks. However, section 15 (3) IANA 2006 does not impose a requirement on the employer to obtain those documents. Therefore, the EAT held that Abellio had been wrong to believe that it was illegal to continue employing Mr Baker.

The Tribunal had found in the alternative that Mr Baker's dismissal had been fair due to 'some other substantial reason' (SOSR) because Abellio genuinely believed that it was illegal to carry on employing Mr Baker. The EAT remitted the case back to the Tribunal to consider whether a dismissal on the grounds of SOSR was fair.

Despite the outcome of this case, employers should remain wary of the risk associated with not insisting that an employee provides right to work documentation. Even if the employer believes that an individual has the right to work, this will be no defence against a civil penalty or criminal sanction if the information that the individual has the right to work later turns out to be wrong.

The only way for an employer to protect itself against the liability is to carry out a full right to work check on all prospective employees before they start work and to carry out repeat checks for employees with a limited right to remain. In addition, employers should conduct periodic audits of personnel files to ensure that no one has slipped through the net. A thorough right to work check will involve the following steps:

1. Obtain

Obtain original documents to prove that the employee has the right to undertake the work being offered.

2. Check

Check the documents in the presence of the applicant, ensure the documents are genuine and that they belong to the prospective employee.

3. Copy

Make clear copies: endorse the copies with the date, confirmation that the original document was checked in the presence of the applicant and then sign and date the copy of the document, before storing the copies in an unalterable format.