An employee who had the right to work in the UK was fairly dismissed by his employer for failing to provide evidence of this right, so said the Tribunal in Baker v Abellio London Ltd. The employer had gone through a detailed process giving the employee every opportunity to apply for and produce this evidence, and the process was given weight by the Tribunal.
Mr Baker (the claimant) had lived in the UK for all of his life on a Jamaican passport, which gives the right to live and work in the UK. Abellio had not checked the right to work status of their employees and at the point where checks were finally done it transpired that the claimant’s passport had expired. Abellio leant the claimant money to help him obtain a new passport and work permit from the Home Office. It also wrote to the claimant asking him for confirmation of applications, warned him of the risk of dismissal, gave him opportunities to obtain proof of right to work and allowed him to appeal against his dismissal.
The claimant applied for a new passport but not a new work permit, and failed to attend meetings with Abellio to discuss the situation. The claimant subsequently lost his job. Abellio allowed him to appeal but his appeal was not successful.
Although the Tribunal made it clear it was sympathetic to the claimant, stating that whilst he was allowed to live and work in the UK, he had nonetheless failed to evidence this. In coming to its decision that the dismissal was fair, the Tribunal placed weight behind the process followed by the company, in particular the investigation into the claimant’s status, repeated opportunities to produce evidence, documented written expectations of what the claimant should do and the right to appeal following his eventual dismissal.
What should you be doing now?
If you have not already, you should check that all of your employees have the right to work in the UK. Check also that if any employees have time-limited rights to work that those time-limits have not expired.
Employers should keep in touch with workers who have time-limited rights to work, and ensure that applications are being progressed or re-submitted in good time especially where key employees are concerned.
If any employees do not have this right, explain carefully the consequences of this, consider if you wish to support them in making any applications and balance the risk of criminal liability against the risk of an unfair dismissal claim.
If you decide to dismiss, ensure that a process is followed and the situation is clearly explained to the employee in writing.
Ensure that workers who are involved in recruitment are aware of the immigration regulations and have at least a working knowledge of how to apply them. Candidates who have accepted a job should not be allowed to start employment without providing evidence of their right to work, and this should be made clear.
Correct checks are a vital part of recruitment. Checks can make a dismissal fair if the reason for the dismissal is that an employee has not produced relevant documents proving a right to work.
Avoiding any criminal penalties for knowingly employing staff without a right to work should be a key concern.
What does this mean for you or your business?
Whilst an ET decision is not binding, this case is a further reminder to ensure that all employees have the right to work in the UK. This can be proven by providing original documents from the Home Office’s specified lists A and B, which form part of the Home Office’s Right to Work checks (available here).
If an employer knowingly employs (this has a wide definition) someone who is not allowed to work in the UK, the employer can be criminally liable for a fine of up to £20,000 and up to 5 years in prison per individual worker. Between 1 April and 30 June 2016, 887 penalties were issued in respect of 1,153 illegal workers. These fines averaged around £11,800 per worker.
Whilst the penalties involved are now very severe, this case demonstrates however that if you have conducted thorough checks and gone through a fair process with your employee you may well be protected from any unfair dismissal claims which relate to right to work.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.