All employers have a legal obligation under the Immigration, Asylum and Nationality Act 2006 (“IANA”) not to employ illegal workers. Getting this wrong can lead to criminal and civil penalties, possible imprisonment for the employer and the worker and also to the employer being “named and shamed” on the UK Visas and Immigration (UKVI) website. So this is an area which you need to get right!
However, employers may face unfair dismissal and/or race or nationality discrimination claims if they breach employment law in an attempt to comply with their right to work obligations. Those claims could be even more costly and could lead to the Equality and Human Rights Commission taking regulatory action against you and/or you being disqualified from entering into public procurement contracts if you are found to have committed an act of unlawful race discrimination.
So how should an employer balance their immigration law and employment law obligations? Not like Dominos Pizza recently did in the recent EAT case of Afzal v East London Pizza Limited t/a Dominos Pizza.
Mr Afzal was from Pakistan and began working for the company in 2009. In 2011, he married a European national and acquired time-limited leave to work in the UK, which expired on 12 August 2016. After that time, having been a permanent resident for five years, he could apply for permanent residence that would continue his right to work. Provided that he applied before his current leave expired (i.e. by 12 August 2016), he was entitled to continue working while his application was considered. The company were used to dealing with immigration matters and proactively reminded Mr Afzal that he needed to provide evidence that he had made an in-time application, but no evidence was received.
Mr Afzal made his application to the Home Office very late in the day, and, late in the afternoon on 12 August 2016, he sent the company an email with two attachments which (he said) provided evidence of his application. However, the company could not open the attachments and, therefore, had no evidence that Mr Afzal had made an in-time application before his leave expired.
The company, therefore, dismissed him by letter that same day, for fear of employing an illegal worker and risking the associated penalties. The company followed no procedure before dismissing Mr Afzal, and the dismissal letter did not give the right to appeal.
Following his dismissal, Mr Afzal provided satisfactory right to work evidence to the company, who offered him a new contract without continuity of service and/or back pay for the period between the dismissal and re-engagement. Mr Afzal brought an unfair dismissal claim.
The Employment Judge decided that the dismissal was fair on the following grounds:
- The company genuinely believed that Mr Afzal’s employment was illegal (although this belief was ultimately wrong), which fell within “some other substantial reason” for dismissal.
- It was reasonable for the company to hold that belief.
- It was also reasonable for the company to urgently dismiss Mr Afzal on 12 August to avoid exposure to criminal and civil penalties, especially as they had given Mr Afzal advance warning.
- Failing to offer Mr Afzal the right to appeal did not render the dismissal unfair, as there was essentially “nothing to appeal against”.
The ET’s focus was on the company’s belief as at the date of dismissal. Specifically, did the company have reasonable grounds for believing that Mr Afzal had not made an in-time application before his current leave expired on 12 August? Once that date had passed, there was no basis for the employer to “back calculate” a belief it did not have on 12 August.
Mr Afzal appealed to the EAT, who overturned the Employment Judge’s decision.
The EAT disagreed with the Employment Judge’s finding that there was “nothing to appeal against”. Whilst it was reasonable to urgently dismiss Mr Afzal due to its genuine belief that his employment was illegal, the company turned out to be wrong. If Mr Afzal had been given the opportunity to demonstrate his right to work during an appeal process, the company could then have withdrawn the dismissal "without fear of prosecution or penalty".
What does this mean for you or your business?
So if you believe that one of your employees (who has worked for you for 2+ years) is no longer allowed to work in the UK, what should you do? The longer you delay, the greater the risk that you are employing an illegal worker.
To fairly dismiss an employee (with 2+ years’ service), you need three elements:
- a potentially fair reason for dismissal;
- which is reasonable in the circumstances; and
- a fair procedure.
One of the potentially fair reasons in employment law is that continuing to employ an employee will involve you or the employee breaking the law (often known as a “statutory restriction” dismissal).
However, you can only dismiss an employee based on “statutory restriction” if you know for certain that continuing to employ the employee is illegal. If you are wrong about that, you cannot rely on that reason to dismiss, and a dismissal on those grounds will be unfair.
In that scenario, you may instead be able to dismiss the employee for “some other substantial reason” (another of the potentially fair reasons for dismissal), provided that you carry out a reasonable investigation and have a genuine belief that continuing to employ them would be illegal. A fair investigation might include:
- Giving the employee more than one opportunity to produce their documents;
- Contacting the Home Office for confirmation regarding the employee’s right to work in the UK (the Employer Checking Service is available for this);
- Suggesting that the employee make a data subject access request to the Home Office seeking confirmation of their status (as immigration applications/appeals can sometimes take time to conclude); and
- Warning the employee that a failure to provide evidence of immigration status could result in their dismissal.
As with any dismissal, ensure that your process is fair and includes the right to appeal, as your otherwise fair dismissal could fall down at that late stage.
What do you need to be doing now?
- Ensure that you understand your right to work and employment law obligations, and seek specialist immigration and employment law advice if you do not.
- Read the Home Office code of practice “Avoiding unlawful discrimination while preventing illegal working”, which contains helpful and practical guidance in this area, especially as an Employment Tribunal can take into account failure to observe the Code in deciding whether there has been discrimination.
- Carry out right to work checks consistently on all employees before they commence employment with you. If they do not have right to work, you should discover this before you employ them, and you will then avoid the offences of knowingly employing an illegal worker or employing a worker who you reasonably believe might be illegal.
- Continue carrying out right to work checks, as required, in respect of existing employees, e.g. when you believe their immigration status may have changed.
- If an employee cannot provide satisfactory right to work documents, investigate this as fully as possible before dismissing them, and offer the right to appeal.
- Remember that, under the Equality Act 2010, you will be liable if your employees commit discrimination in the course of their employment, whether or not you knew or approved the acts of discrimination, unless you can prove that you took all reasonable steps to prevent such discrimination. To benefit from this defence, provide training to your employees on how to apply right to work checks in accordance with the Home Office Code of Practice.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.