Illegal workers? How to dismiss fairly
It is a criminal offence to employ an individual who does not have the right to work in the UK, and an employer is also liable for a civil penalty of up to £20,000 per illegal worker.
Would a dismissal be fair if an employer dismisses an employee in the mistaken belief the employee does not have the right to work in the UK?
The Employment Appeal Tribunal (EAT) has recently had to consider this very question.
What does the law require?
A brief recap on the law.
For a dismissal to be ‘fair’ in law, the reason for the dismissal has to be for one of the reasons stipulated in legislation. These ‘reasons’ include:
- ‘some other substantial reason’ (SOSR)
- continued employment would be a breach of a statutory duty (often referred to as ‘illegality’)
It is unlawful to employ an individual who does not have the right to work in the UK, or is working in breach of their conditions to stay in the UK. Employers have a legal obligation to carry out checks to ensure that all their employees have, and where necessary, continue to have, the right to work in the UK. If the ‘right to work checks’ are carried out correctly, then if it is subsequently established that the employer has employed an illegal worker, the employer has a ‘statutory defence’ against a financial penalty of up to £20,000 per illegal worker.
In accordance with the immigration legislation, if an individual makes an application for a new visa, they will retain the right to live and work in the UK under the terms of their previous visa, as long as the new application has not been decided by the Home Office, has been withdrawn or an appeal against a refusal is outstanding.
How was this issue considered by the EAT?
An employee, Mr Nayak, started work for the Royal Mail in January 2008 with a work visa. He then made various changes and applications to his visa. His employer had a policy of checking an employee’s right to work status every six months to ensure it was not in breach of its obligations to prevent illegal working.
For over a year the Royal Mail contacted the employee on several occasions over the next year to request an update on his immigration status but Mr Nayak did not respond. Royal Mail called Mr Nayak to a meeting to discuss the matter and warned Mr Nayak that his continued failure to provide the necessary documentation may result in his dismissal. At the meeting Mr Nayak failed to produce any documents and he was dismissed.
He appealed the decision to dismiss him. Royal Mail gave him a further 42 days to provide documentation to establish his right to work in the UK. During that time he did not contact the Home Office and the appeal panel decided that the decision to dismiss should be upheld.
Mr Nayak brought a claim before the employment tribunal for unfair dismissal. He lost. He also lost at his appeal because the EAT determined that the Royal Mail made reasonable enquiry into his circumstances and that by the time of Mr Nayak’s dismissal there was insufficient evidence available to the employer of Mr Nayak’s right to work in the UK. Royal Mail therefore acted reasonably in treating this as a SOSR dismissal.
What lessons can be taken from the case?
The ‘fair reason’ relied on by Royal Mail was ‘SOSR’ rather than ‘illegality’. The case serves as a useful reminder that if an employer is concerned about an employee’s right to work in the UK, they should consider very carefully the ‘fair reason’ they wish to use to terminate the employment.
Only if the employer knows that the employee does not have the right to work in the UK should they rely on the fair reason of ‘illegality’.
If the employer is not sure, but has a genuine and reasonable belief the employee does not have the right to work in the UK, then dismissal should be for SOSR.
The EAT considered that the Royal Mail’s policy of checking immigration documents (for employee’s with limited rights to work in the UK) every six months was reasonable and responsible so this is also something to consider adopting.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.