Dismissal Fair Where Employer Genuinely and Reasonably Believed Employee Had No Right to Work in the UK


5 mins

Posted on 27 Apr 2016

An employer had been entitled to dismiss an employee whom it genuinely believed did not have the right to work in the UK. 

Speedread

An employer had been entitled to dismiss an employee whom it genuinely believed did not have the right to work in the UK. A dismissal in these circumstances can constitute some other substantial reason for dismissal and is potentially fair. The employer had made numerous attempts to establish the employee’s immigration status and the employee had persistently failed to cooperate. The employment tribunal had therefore been entitled to conclude that the employer genuinely and reasonably believed that the employee did not have the right to work in the UK. When relying on this ground as a ground for dismissal, the fact that it turns out that the employee had the right to work in the UK does not render the dismissal unfair. 

Facts

In Nayak v Royal Mail Ltd, Mr Nayak was dismissed because Royal Mail believed that he no longer had the right to work in the UK. 

Prior to the expiry of his post study visa, Mr Nayak applied for a Tier 4 (General) student migrant visa. This was initially refused, but following a successful appeal to the immigration tribunal, his application returned to the Home Office for consideration and processing. 

Royal Mail’s policy in circumstances such as this was to carry out immigration checks every six months. In March 2012, Royal Mail contacted the Home Office who confirmed that Mr Nayak had the right to work in the UK on the basis of an outstanding appeal. On 20 August 2012, 20 January 2013 and 17 February 2013, Royal Mail wrote to Mr Nayak asking him to provide updated proof of his right to work in the UK. He did not respond. He had written to the Home Office in April 2012 asking when his application was likely to be determined but received no reply and made no further enquiries. 

In May 2013, in response to Royal Mail’s enquiry, the Home Office confirmed that as Mr Nayak had commenced employment prior to 29 February 2008, no further checks were required if, at the start of employment, current document checks had been carried out and copies kept on file. Royal Mail had not done this. 

Between December 2013 and May 2014, Royal Mail made more intensive enquiries of Mr Nayak and warned him that failure to provide evidence of his immigration status may result in dismissal. On 8 May, he failed to provide the necessary documentation at a meeting and was dismissed by letter the next day. He appealed and Royal Mail gave him a further 42 days to provide the requested documentation. They also suggested that he make a subject access request to the Home Office as the Home Office would be obliged to respond. He did not do this and on 8 August 2014 the decision to dismiss was upheld. 

Nr Nayak claimed unfair dismissal. The employment tribunal dismissed his claim and he appealed to the Employment Appeal Tribunal (“EAT”).

Decision

The EAT dismissed his appeal. A genuine and reasonable belief that an employee is not permitted to work in the UK can constitute some other substantial reason for dismissal and so can be a fair reason for dismissal. The employment tribunal had been entitled to conclude that Royal Mail genuinely and reasonably believed that Mr Nayak no longer had the right to work in the UK. It had made enquiries of the Home Office prior to dismissal, it had been unable to obtain up to date information directly from the Home Office, it had made repeated requests of Mr Nayak over a long period of time and he had persistently failed to cooperate by refusing to contact the Home Office. His failure to cooperate suggested that his immigration status may have changed. Royal Mail had taken reasonable steps to investigate the position and the appeals officer had gone to considerable lengths to give him an additional opportunity to make appropriate enquiries. 

Implications 

Establishing whether an employee has the right to work in the UK when a visa expires and an application for a new one is under consideration can be problematical for employers, as the facts of this case demonstrate. If they continue to employ an employee who has no right to work in the UK they face a £20,000 fine (and if they do so ‘knowingly’ a criminal offence is also committed which carries with it an unlimited fine and potential prison sentence). 

If the employee actually has no right to work in the UK, it is possible to dismiss on the basis that continuing to employ them would be in breach of a statutory restriction. However, it is not possible to rely on this ground if it transpires that the employee did in fact have the right to work in the UK all along. If the employer relies on that ground in circumstances where the employee did have the right to work in the UK, the dismissal will be unfair. 

This case is a useful reminder that it is possible to dismiss an employee fairly, based on a genuine and reasonable belief that the employee did not have the right to work in the UK, even if it that belief turns out to be wrong. However, care should be taken and advice sought as these types of cases concerning immigration status can be complex. Employers who find themselves in this situation should do their best to inform themselves of the employee’s immigration status by making full enquiries of both the employee and the Home Office and ensure that they warn the employee of the risk of dismissal before proceeding to dismiss.

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