Dismissals for failing to provide right to work documentation: illegality or SOSR?

An employer cannot rely on illegality as a fair reason for dismissing an employee just because they are unable to provide evidence of their right to work in the UK.  

Speedread

An employer cannot rely on illegality as a fair reason for dismissing an employee just because they are unable to provide evidence of their right to work in the UK.  The only relevant offence under the Immigration and Nationality Act 2006 relates to employing someone who does not have the right to live and work in the UK, which was not the case here.  There is no legal obligation on an employer to obtain right to work documentation.  Obtaining it simply provides an excuse from paying a penalty if it transpires that an employee who was subject to immigration control did not have the right to work in the UK.  However, a genuine but mistaken belief that it is illegal to continue to employ someone may constitute some other substantial reason for dismissal and a dismissal for this reason may potentially be fair.  

Facts

Mr Baker is a Jamaican national who has the right of abode under the Immigration Act 1971 which means that he has the right to live and work in the UK and does not require leave to enter or remain.  After becoming aware that another employee did not have the correct right to work documentation, Abellio carried out an audit to ascertain whether any other employees did not have this documentation.  Abellio asked Mr Baker to produce one of a list of documents which included his passport.  He explained that he had the right of abode and the right to work in the UK but his Jamaican passport had expired in 2000. Abellio suspended him without pay and gave him the opportunity to obtain the necessary documentation, which it said included visa documentation as well as the passport. Mr Baker obtained the passport and maintained (correctly) that he did not need a visa.  

Following enquiries of the Home Office, Abellio accepted that Mr Baker had the right to work in the UK, but because he was unable to provide the documents that would provide it with a statutory excuse, it considered that his continued employment would be illegal.  It therefore dismissed him. He claimed unfair dismissal.  

The employment tribunal considered that Abellio had dismissed for illegality, a fair reason for dismissal, and the dismissal was fair. Alternatively, he had been fairly dismissed for some other substantial reason.  Mr Baker appealed.

Decision

The Employment Appeal Tribunal ruled that the tribunal had been wrong to find that Abellio had established illegality as the reason for dismissal. The only relevant offence under the Immigration and Nationality Act 2006 relates to employing someone who does not have the right to live and work in the UK, which was not the case here.  There is no legal obligation on an employer to obtain right to work documentation.  Obtaining it simply provides an excuse from paying a penalty if it transpires that an employee who was subject to immigration control did not have the right to work in the UK.  

Abellio had therefore been wrong to believe that it was illegal to continue to employ Mr Baker and it could not rely on illegality as a fair reason for dismissal. A genuine but mistaken belief that employment is illegal does not constitute illegality but may constitute some other substantial reason for dismissal.  It remitted the case to the tribunal to determine whether dismissal for that was reason was fair.  

Implications

Employers can only rely on illegality as a reason for dismissal if it is actually illegal to continue to employ the employee in question.   A genuine but mistaken belief is insufficient. 

Issues surrounding an employee’s immigration status and right to work can be complex and an employer that continues to employ an employee who has no right to work in the UK could face a £20,000 fine and risk their sponsor licence.  Employers will therefore want to ensure that they have obtained evidence of employees’ right to work in the UK.  If an employee is unable to provide this evidence, this will not necessarily mean that their employment is illegal.  Employers who find themselves in this situation and are considering dismissal should therefore rely on some other substantial reason rather than illegality as the reason for dismissal. Illegality should only be given as the reason for dismissal in clear-cut cases which will be few and far between.