Immigration: Dismissing employees with uncertain immigration status
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. 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 to avoid civil penalties of up to £10,000 for employing illegal workers. However these cases will be fact sensitive and therefore immediate legal advice should be taken prior to taking any steps to dismiss.
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 ET, 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. The EAT considered that the Trust had satisfied this requirement.
This case is of course good news for employers, but caution should be exercised in circumstances such as these, as these cases are likely to turn on the individual facts. We therefore suggest that advice should be taken before any steps are taken to dismiss.
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