Can An Employee Be Dismissed For Not Providing Evidence Of Their Right To Work In The UK?

This was the question recently considered by the Employment Appeal Tribunal in a case involving a Jamaican national who was unable to provide his employer with the correct 'right to work' documents.

The EAT confirmed that where an employee has the right to work in the UK but is unable to provide documentary evidence of that right, that failure cannot be relied as the basis for a fair dismissal - unless the employer had a genuine but mistaken belief at the time of dismissal that they were employing the employee illegally.

The background

It is unlawful to employ someone subject to immigration control if they do not have leave to enter or remain in the UK or if they have valid leave but are not permitted to work. A breach risks a fine of up to £20,000 (and potential consequences for sponsorship licences) but there is a defence if an employer can show that they carried out certain documentary right to work checks (see the Home Office's right to work checklist).

The facts

Mr Baker was employed by Abellio as a bus driver. He is a Jamaican national who has lived in the UK since childhood. As a result he is not subject to immigration control and does not require leave to enter or remain in the UK.

Following an internal audit, Abellio became aware that although the Home Office had confirmed that Mr Baker had the right to work in the UK he did not have the correct documentation to prove it. He was given an opportunity to obtain the required documents but did not do so. Abellio was of the view that it was employing him unlawfully and so he was dismissed by reason of illegality.

The decision

The EAT overturned the tribunal's decision that Mr Baker had been fairly dismissed.

In order to rely on illegality as a potentially fair reason for dismissal, an employer must show that continued employment of the employee does in fact contravene a statutory enactment. Abellio could not rely on illegality as a fair reason for dismissal because it was not unlawful to employ Mr Baker without proof of the correct right to work documentation.

However, the dismissal could potentially be fair on the grounds of 'some other substantial...