Failure to show right to work is not a reason for dismissal, says EAT

The Employment Appeal Tribunal (EAT) recently considered the issue of whether a worker’s failure to provide evidence of a right to live and work in the UK (despite having such a right) could come under the meaning of illegality as a fair reason for dismissal.

Abellio employed Mr Baker as a bus driver, who had the right to work and live in the UK as a Jamaican national. Abellio suspended Mr Baker after he failed to provide documentation evidencing his right to work in the UK. Mr Baker was then given the opportunity to acquire the necessary documents, but he failed to do so and was subsequently dismissed on the grounds of illegality.

Mr Baker brought an unfair dismissal and unlawful deductions from wages claim against his employer.

The Employment Tribunal (ET) at first instance found that the company was entitled to dismiss the employee for reason of illegality, as he was not able to provide documentation of his right to work for the purposes of the Immigration, Asylum and Nationality Act 2006. The ET also found in the alternative that the employee had reasonably been dismissed for some other substantial reason, that is, Abellio’s belief that employing Mr Baker was illegal.

The EAT held that the tribunal had erred as there was no illegality to speak of- as Mr Baker had the right to live and work in the UK. The requirement to provide documentation only applied to those who are subject to immigration controls, which Mr Baker was not. Therefore, illegality could not be the basis on which to dismiss him. Looking at the employment tribunal’s alternative findings, the EAT held that the employer’s belief that it was illegal to employ someone could constitute some other substantial reason for dismissal. However, the case was sent back to the employment tribunal to determine whether the dismissal was fair on the facts.

Employers are strongly advised to conduct a full right to work check prior to employment starting. Full details of the requirements for a work check can be found on the website here. Employers who are found to employ workers illegally can face a civil penalty of up to £20,000, and it may also impact any Home Office sponsor licences they hold. Showing that a right to work check has been conducted is a statutory defence against any civil penalty.

Baker v Abellio London (UKEAT0250/16)

ebl miller rosenfalck – December 2017

Contact details:

Philip Henson, Partner and Head of Employment Team


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