Employment Law Speed Read – 20/11/17
20th November, 2017
This week we look at the unfair dismissal case of an employee who was not subject to immigration control, but could not provide right to work documentation.
Mr D Baker v Abellio London Limited
In the case of Mr D Baker v Abellio London Limited, the Employment Appeal Tribunal has found that the dismissal of an employee who was not subject to immigration control, but who could not provide right to work documentation, was not fair.
Mr Baker (B) was a Jamaican national who had lived in the UK since childhood and was employed by Abellio London Limited (Abellio) as a bus driver from 23 July 2012 until his dismissal on 3 July 2015.
It was not disputed that B had the right to live in the UK under the Immigration Act 1971 (IA) and Abellio recognised his right to work in the UK.
In 2015, Abellio carried out an audit after discovering a different employee did not have the required right to work documentation. Abellio asked B to produce evidence including his passport. B did not have a current passport but confirmed that he had the right to live and work in the UK. Abellio decided that B was to be suspended without pay until he could produce evidence of this.
B obtained a passport with the help of a loan from Abellio. However, Abellio also asked B to submit a No Time Limit application. B refused on the basis that he was a British citizen,; had the right to work under the IA and could not afford to make an application. Subsequently, Abellio dismissed B for not providing proof of his right to work and his employment was terminated by reason of illegality under s.98(2)(d) of the Employment Rights Act 1996 (ERA).
Employment Tribunal (ET)
The ET Judge found in Abellio’s favour, holding that his dismissal by reason of illegality was fair. The ET Judge stated that Abellio could not continue to employ B without contravening its obligation under s.15 of the Immigration Asylum and Nationality Act 2006 (IANA) to obtain specific documentary proof that B had the right to work in the UK.
Further, the ET Judge stated that B’s dismissal could also be fair under Some Other Substantial Reason (SOSR).
Employment Appeal Tribunal (EAT)
The EAT held that that the ET erred in holding that B’s dismissal was fair under s.98(2)(d) ERA.
It held that s.15 IANA only applies to those who are subject to immigration control, namely a person who requires leave to enter or remain in the UK under the IA. B was not subjected to immigration control and therefore his dismissal could not fall within s.98(2)(d).
The EAT stated that even if B had been subjected to immigration control, s.15 of IANA does not impose a requirement on an employer to obtain certain documents, it merely gives them an excusal from penalty if certain documents are obtained from an employee.
However, the EAT stated that B’s dismissal could be fair for SOSR, if the employer had a genuine but erroneous belief that his employment was illegal. The EAT remitted the claim on this point to the ET for reconsideration.
Whilst an employer is not breaking the law by not carrying out right to work checks on all employees before employment begins, it is strongly recommended that these steps are taken.
Carrying out a right to work check which complies with the Home Office’s guidance provides a statutory excuse which can lead to the employer avoiding the fine of up to £20,000 if they are found to be employing one illegal worker. It is also essential for organisations who hold a licence to sponsor migrant workers and forms part of their sponsor duties.
This case also demonstrates that employers cannot seek to dismiss an employee by relying on illegality in the situation where an employee does not have the required right to work documentation and they are not subject to immigration controls. It is recommended that prior to dismissing an employee the whole range of potentially fair reasons for dismissal are considered and the appropriate reason(s) selected.