Fair to dismiss an employee with no evidence of right to work in UK

Following the UK’s Brexit decision, which now seems some time ago, a recent Employment Tribunal decision has thrown up an interesting case in respect of employees showing evidence of their right to work in the UK. Once Article 50 is triggered this type of case may become even more relevant to employers depending upon the new immigration system that is introduced by the Home Office.

The case in question related to Mr Baker, an employee who was a Jamaican national and had moved to the UK as a child using his Jamaican passport. Mr Baker was employed by Abellio Ltd who were carrying out routine immigration status checks on their employees. Mr Baker was asked to evidence his immigration status and rights to live and work in the UK. Having spent most of his life in the UK Mr Baker had indefinite leave to remain in the country, however Mr Baker had never applied for a UK passport and as he had never left the UK on holiday his Jamaican passport had expired. He did not have any documentation to prove to his employer he had indefinite leave to remain in the UK.

Abellio gave Mr Baker a loan of £350 to enable him to obtain the correct legal documents to satisfy his employer he was entitled to continue to work in the UK and avoid his dismissal. Mr Baker unfortunately only arranged for a new passport to be issued and did not obtain the required endorsements to evidence his right to remain and work in the UK. The Home Office advised Abellio that the passport alone was not sufficient evidence.

Abellio warned Mr Baker about the consequences of not obtaining the endorsement and that he could be dismissed. A meeting was arranged with Mr Baker to discuss matters. Mr Baker failed to attend the meeting and he was dismissed for failure to provide documentation showing he was entitled to work in the UK.

A claim was issued against Abellio for unfair dismissal. The Employment Tribunal found in favour of Abellio in that they had followed a fair procedure in dismissing Mr Baker and that they were correct to insist upon seeing evidence of his immigration status. Abellio had investigated Mr Baker’s immigration status, explained what evidence was required, warned him of the possibility of dismissal, given him a loan to cover the costs of obtaining the new passport and correct endorsement, and given him the opportunity to rectify the lack of endorsement. The dismissal was deemed to be fair by the Tribunal.

Mr Baker did have the right to remain and work in the UK, however, he did not have the correct documentation to prove this and his employer had taken all reasonable steps when dealing with the situation in trying to obtain the required evidence.

The case is a cautionary tale to employees who need to make sure they have the correct immigration and work documentation. The case also highlights that not having the correct documents can potentially be a fair reason to dismiss employees. This may prove to be more significant in coming months as details are revealed in relation to Brexit.

What should employers be doing?

• Employers should make sure their employees’ contracts of employment provide for having the correct immigration documents as a contractual term of employment.
• In relation to immigration issues and the UK’s impending departure from Europe, employers should consider auditing their workforce in respect of immigration status.
• It is uncertain what the immigration regime will be post-Brexit, however, employers can be taking steps to protect their workforce if they employ European nationals in so far as they can, which could include:

- Assisting employees with applications for a registration certificate or a permanent residence card.

- Investigating whether employees have rights to apply for permanent residency, or dual citizenship.

- Assisting those employees who have a permanent residence card to obtain British Citizenship, if appropriate.

If you would like to discuss any of the matters included in this article, please contact a member of our Employment Team on 01603 610911.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.