Right to work
18th November, 2019
Badara v Pulse Healthcare Limited UKEAT/0210/18/BA
The Employment Appeal Tribunal’s judgment in this case is a timely reminder of the current rights of non EEA family members (including spouses) of EEA or Swiss Nationals under the Immigration (European Economic Area) Regulations 2006 (the EEA Regulations) which implement the Free Movement European Directive (“the Directive”) in the UK, and the need for employers to consider all documents available (and not just negative verification notices from the Home Office’s Employer Checking Service (ECS)) before reaching conclusions about their staff’s right to work.
The Claimant was a Nigerian national who came to the UK in 2003 with a 5 year Residence Card which confirmed his status as a family member (spouse) of an EEA national and which expired on 20 January 2015. He worked for the Respondent as a healthcare support worker. The Claimant did not apply for an extension to his Residence Card until the afternoon of 20 January 2015, and the Respondent refused, from that point, to provide work to the Claimant on the ground that it did not believe that the Claimant had provided the necessary evidence of his right to work in the form of a positive ECS check. The Claimant provided a Certificate of Application to the Respondent in mid-March 2015. Home Office ECS checks carried out by the Respondent between 21 January and 15 July 2015 were all negative. The Claimant, in October 2015, produced a card confirming a permanent right of residence in the UK from 16 October 2015.
The Claimant brought two claims at the Employment Tribunal (ET) for unlawful deduction of wages (from 20 January 2015 to 29 April 2015 (Claim 1) and 28 September 2015 to 17 November 2015 (Claim 2). Both claims also claimed direct and indirect discrimination on the grounds of race and / or nationality. Following an adverse judgement against the Claimant in respect of Claim 1 in October 2015, (which was subsequently overturned on 27 April 2017), the Respondent terminated the relationship with immediate effect on 17 November 2015 for reasons unrelated to his right to work in the UK.
The Legal Framework relevant to Badara
Articles 23 and 25 of the Directive: irrespective of nationality, family members of a Union citizen who have the right of residence in a Member State shall be entitled to take up employment or self-employment there and documentary evidence is not a precondition for the exercise of this entitlement.
Regulation 13 of the EEA Regulations: a non EEA family member of an EEA national residing in the UK has an initial right to reside in the UK provided that he holds a valid passport, and that he has an extended right of residence if he remains the family member of the EEA national.
Section 15 of The Immigration, Asylum and Nationality Act 2006 (the 2006 Act): it is unlawful to employ someone who does not have the right to work in the UK. The Secretary of State may impose a financial penalty (currently capped at £20,000 for each illegal worker) payable by the employer, unless the employer has a statutory excuse, available to employers who have carried out compliant right to work checks in accordance with the Immigration (Restrictions in Employment) Order 2007 (the 2007 Order) as amended.
Home Office guidance – An Employer’s Guide to Right to Work Checks: right to work checks (using Lists A and List B in the 2007 Order) need to be carried out on all people before their employment starts, and be repeated for non-EEA / Swiss citizens with time limited permission to do the work in question. The Additional Information section of this guidance provides that there is no mandatory requirement for non-EEA nationals resident in the UK as family members of an EEA national to register with the Home Office or to obtain documentation issued by the Home Office. It is open for such individuals to evidence their right using other documents not included in List A or List B, which the employer can either accept or seek advice on from the Home Office.
From ET to EAT
The ET concluded (and the Respondent by this point agreed), as a matter of law and regardless of paperwork provided by the Claimant, that the Claimant had a right to work under the EEA Regulations. However, it went on to hold that, in light of the penalty provisions in the 2006 Act, the 2007 Order (and a clause in the Claimant’s contract concerning evidence of eligibility to work), it was reasonable of the Respondent to require proof of eligibility to comply with these provisions. The Claimant had failed to do that until he produced the card confirming his permanent right of residence from 16 October 2015. On that basis no wages were properly payable until 16 October 2015, but were payable for the period 16 October to 17 November 2015. The ET dismissed the claims for direct and indirect discrimination, finding that the reason the Respondent had not offered work to the Claimant was the Home Office’s requirement with regards to ECS checks, and not because of the Claimant’s race or nationality, and that the Respondent’s policy of requiring a positive ECS check from all non EU national staff before offering work was objectively justified having regard to the legitimate aim of complying with immigration control, and in light of the risk of penalties being imposed.
The Claimant appealed. The central question in the appeal which he was allowed to pursue was whether, notwithstanding the Claimant having a right to work in the UK, the Respondent reasonably required him to produce evidence of his right to work in the form of a positive ECS check.
The EAT recognised that the Respondent’s concern to avoid penalties was a natural one, particularly in light of the wording of the negative ECS results, and found that there was no reason why the ET might have found there was a different reason to the one relied upon by the Respondent for not offering work to the Claimant. The claim for direct discrimination was dismissed.
However, the EAT concluded that the ET had erred in law by failing to take in to account:
- the earlier EAT judgment in Okuoimose v City Facilities Management Ltd which made it clear that the provisions of the penalty scheme were not triggered in circumstances (like those of the Claimant) when the individual in question does in fact have a right to work in the UK, and
- the Additional Information section of the Home Office guidance
The ET’s finding that it was reasonable for the Respondent to refuse the Claimant work or pay in the absence of a positive ECS checks was therefore flawed.
The Claimant’s claims of unlawful deduction from wages and indirect discrimination have been remitted to the same ET for consideration.
So the case continues…
Remember, whilst non EEA family members of EEA citizens and EEA and Swiss citizens do not currently need any documents from the Home Office as evidence of their right to work, at the point of writing, they will need to register under the EU settlement scheme to preserve their right to work beyond 31 December 2020.
If you have any queries about this case, the EU Settlement Scheme or generally Ward Hadaway’s immigration team will be happy to assist.