Dismissing Employees Who No Longer Have The Right To Work

• Published date: 31 March 2022
• Subject Matter: Employment and HR, Immigration, Contract of Employment, Discrimination, Disability & Sexual Harassment, Unfair/ Wrongful Dismissal, General Immigration
• Law Firm: DMH Stallard
• Author: Aisling Malone

Employer's question: can an employer dismiss without notice an employee who no longer has the right to work, or should they be paid in lieu of notice?

An employee's right to work status may change, particularly if they have limited leave to remain in the UK. For example, if their visa expires or the relationship upon which the visa depends breaks down, they may lose the right to work. An employer who has reasonable cause to believe that an employee no longer has the right to work risks a civil penalty up to '20,000 per worker and criminal prosecution, which could lead to an unlimited fine and/or imprisonment. Employers who are sponsors of migrant workers also risk the downgrade or removal of their sponsor licence and the curtailment of the leave to work in the UK of all sponsored staff. In these circumstances, it is often in the employer's best interests to terminate the relevant employment(s) promptly in order to avoid or limit such liability. Suspension of the employee with or without pay will not mitigate the risk of civil penalty or prosecution as the individual will still be regarded as employed by the employer.

Employers often dismiss an employee on the grounds of illegality as a potentially fair reason for dismissal. If it has become illegal, the contract is void and unenforceable, meaning that no notice is required to terminate it. However, two issues arise of which employers need to be aware. First, it is possible that the employer's genuine belief in the illegality of the contract may be wrong. There have been cases where right to work checks indicate that a worker has no right to work, but it later turns out that this was incorrect. In such cases, the employer will have relied on a potentially fair reason to dismiss (illegality) that in fact did not exist. It is important, therefore, to consider...