Dismissal: Dismissals linked to illegal working
A new Employment Appeal Tribunal (EAT) case has been decided which gives an indication of the Tribunal’s approach to dismissals linked to illegal working issues. In Kurumuth v NHS Trust North Middlesex University Hospital, the EAT found that it was reasonable for the Trust to dismiss Ms Kurumuth, when the UK Border Agency could not confirm that she had the right to work in the UK.
In 1992, Ms Kurumuth came to the UK. She had a work permit but was refused leave to remain in 1997. She appealed and received a letter from the Home Office explaining that she may have leave to remain while the appeal was being determined. After the points based immigration system was introduced the Trust was no longer happy to rely on the letter from the Home Office as proof that she had leave to remain. They contacted the UK Border Agency but they could not confirm the position either. As a result, the Trust concluded that they had no evidence that Ms Kurumuth had the right to work in the UK and they dismissed her without notice on 29 January 2010. The EAT considered that whilst it was regrettable that the Home Office had not dealt with Ms Kurumuth’s appeal for 11 years, neither the Employment Tribunal, nor the EAT could determine whether or not Ms Kurumuth was entitled to work in the UK. It determined that the Trust had reasonable grounds to dismiss her in that they had a legitimate and fair reason for dismissal – the Trust believed that Ms Kurumuth was not entitled to work in the UK. The EAT stressed that an employer must take all reasonable steps to investigate the truth of the situation and the level of investigation and the steps required to investigate will depend on the particular circumstances. In this case the EAT considered that the Trust had satisfied this requirement.
What does this mean?The decision suggested that in certain circumstances it will be reasonable for employers to err on the side of caution and dismiss employees without evidence of leave or a visa in order to avoid civil penalties of up to £10,000. This case is of course good news for employers and is a rare example of such an immigration issue being considered by the EAT. However, caution should be exercised in circumstances such as these, as these cases are likely to turn on the individual facts and the evidence as to immigration status available. We therefore strongly suggest that legal advice should be taken before any steps are taken to dismiss.
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