Dismissal for failure to provide evidence of right to work in the UK
One of the potentially ‘fair reasons’ for dismissal under the Employment Rights Act 1996 (ERA) is commonly known as ‘illegality’, and arises where an employee cannot continue to work in their role without contravening a statutory enactment.
In the case of Baker v Abellio London Limited, the limitations on the use of that reason for dismissal in the context of the right to work in the UK have been made clear.
The Employment Appeal Tribunal (EAT) has confirmed that where an employee has the right to work in the UK, but is unable to provide evidence of that right, an employer cannot rely on the failure to produce evidence as breach of a statutory enactment and the fair reason for dismissal.
Mr Baker was employed by Abellio as a bus driver. He was a Jamaican national who had the right to work in the UK. Abellio decided to carry out an audit of its workforce to determine whether their documentation was all in order in accordance with section 15 of the Immigration, Asylum and Nationality Act 2006 (IANA). Mr Baker (among others) was asked to produce one of a list of documents. He explained that he did not have the required documents, but confirmed that he had the right to live and work in the UK, and that this had been confirmed to him by the Home Office.
Mr Baker was called to a meeting and suspended without pay until he could produce evidence of his right to work. Although Abellio accepted that as a matter of fact Mr Baker did have the right to work, he was unable to produce documentary evidence that was satisfactory to Abellio, and he was therefore summarily dismissed.
Employment Tribunal claim
Mr Baker brought a claim for unfair dismissal. Abellio argued that his continued employment without proper documentation of the right to work would contravene a statutory enactment and therefore his dismissal was fair for illegality.
The Employment Tribunal (ET) accepted Abellio’s arguments and dismissed Mr Baker’s claim. Mr Baker appealed to the EAT.
The EAT overturned the ET’s decision and held that Mr Baker had been unfairly dismissed. As a matter of fact, Mr Abellio had the right to work in the UK and was not, therefore, subject to immigration control. In any event, even if Mr Baker had been subject to immigration control, a request to check immigration documentation under IANA is not a statutory duty. Instead it provides the possibility of a statutory excuse from penalty if certain documents are obtained from the employee.
Abellio could not rely on illegality as a fair reason for dismissal as no statutory duty had been breached.
However, helpfully for employers, the EAT did note that Mr Baker’s dismissal could nevertheless be fair on the grounds of “some other substantial reason” (SOSR), if Abellio had a genuine but mistaken belief that his continued employment was illegal. The case was remitted to the ET to determine whether, on the facts of this case, a SOSR dismissal was fair.
What to take away
This case is a reminder for employers that in order to fairly dismiss on grounds of illegality the employer must be certain that there is actually a contravention of an enactment – a reasonable but mistaken belief will not be sufficient.
An employer would be well advised, particularly in right to work cases which are often complex, to ensure they are able to justify such a dismissal on the alternative ground of SOSR, where a mistaken but genuine belief may be sufficient, provided a fair process is followed. We recommend that employers follow a short and reasonable procedure before dismissal, and that they set out clearly in correspondence the factual circumstances on which they are relying.