Immigration: Important new case on ‘right to work’ checks

Having a rigorous process in place to ensure that right to work checks are properly carried out to prevent illegal working is critical.

It is unlawful to employ an individual who is ‘subject to immigration control’. This captures anyone who does not have valid leave to enter or remain in the UK, or has valid leave but is not permitted to work. Allowing illegal working can have serious adverse consequences for employers. An employer who has ‘reasonable cause’ to believe that an individual is working illegally may face criminal liability, and hefty civil penalties of up to £20,000 are a common occurrence. Either penalty can have disastrous commercial consequences for any employer who relies on a sponsorship licence to engage migrant workers.

For that reason, having a rigorous process in place to ensure that ‘right to work’ checks are carried out is critical. Carrying out such a check, in line with Home Office guidance, provides a statutory excuse to protect employers if an individual is inadvertently employed illegally.

So far, so good. However the challenge for HR often comes when an employee fails to produce the documents requested. It may not always be fair to dismiss in these circumstances and an employer who has carefully followed ‘right to work’ processes may still fall foul of the law.

For example, In the case of Baker v Abellio London, the EAT held this month that an employee who did have the right to work (but failed to provide documents) had been unfairly dismissed.

What happened?

The Claimant, Mr Baker, who was employed as a bus-driver for Abellio, was a Jamaican national who had lived in the UK since he was a child.

On discovering that another of its employees did not have the correct ‘right to work’ documentation, Abellio decided to carry out fresh checks across its whole workforce. When Mr Baker was asked to produce his passport, he explained that he did have one, but maintained that he did have the right to work in the UK. This was later confirmed by the Home Office.

However, despite being given extra time and some financial assistance, Mr Baker failed to produce a new passport. As a consequence, his employer could not obtain the ‘statutory excuse’ to protect them from criminal liability or a civil penalty if Mr Baker was found to be working illegally in future. Uncomfortable with this state of affairs his employer dismissed him for ‘illegality’ (or more properly ‘contravening a restriction imposed by an enactment’). Mr Baker subsequently brought a claim of unfair dismissal.

The decision

The Employment Tribunal that first heard the claim decided that Mr Baker had been fairly dismissed.

However, the Employment Appeal Tribunal reversed this decision. For a dismissal to be fair, it is fundamental to identify the correct potentially fair reason. Abellio had chosen ‘illegality’ but, in fact, continuing to employ Mr Baker would not have put them in breach of any legal obligations. He was not subject to immigration control and the Home Office had confirmed that he had the right to remain and work in the UK.

In reality, Abellio had dismissed Mr Baker because they were not able to complete the right to work checks and were not protected against a future civil or criminal penalty. However, there is no absolute legal obligation to carry out these checks (albeit that they are commercially essential to safeguard an employer’s interests) so ‘illegality’ was not the correct label to apply.

What does this mean for me?

At first, this may seem a harsh result for this employer, which had worked hard to comply with the requirements of the immigration regime only to end up getting caught out by unfair dismissal rules. However, this case highlights the tension between these two areas of law and the difficulties that can arise when they intersect.

Immigration law is highly technical and can be difficult to navigate, so it is essential to seek specialist advice if you are unsure about your obligations. However, more than anything, this case is about the fundamental importance of choosing very carefully your reason for dismissal. If the employer had chosen another reason, such as ‘Some Other Substantial reason’ (SOSR), and had framed the dismissal slightly differently, the outcome may have been different. In fact, the EAT asked the Employment Tribunal to consider this possibility afresh.

Even where an individual fails to provide the documents you ask for, jumping to a dismissal for ‘illegality’ is highly likely to be unfair, if you know that an individual does have permission to remain and work in the UK. If you still wish to dismiss you will need to carefully weigh the risk of an Employment Tribunal claim against the risk of a future immigration penalty and take specialist advice about the most appropriate reason for dismissal before you proceed.

Mandy Higgins (mandy.higgins@weightmans.com)  is a Partner in the Employment, Pensions and Immigration Team and is based in Liverpool. If you have any questions, please do not hesitate to contact Mandy or speak to your usual Weightmans advisor.

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