It is (we hope) common knowledge that individuals must be eligible to work in the UK before they can be employed, and that employers must take steps to satisfy themselves of such eligibility in order to have a statutory defence to any issues raised in relation to immigration compliance.
At the moment, where the individual is British or from a country in the European Economic Area (EEA), the employer will generally have to conduct a check only at the commencement of employment, which usually involves obtaining a copy of the individual’s passport, copying it and retaining the signed copy in the individual’s file.
However, the situation can become complex when the individual in question has been allowed entry into the UK under some form of visa, which generally allows the individual to work for a finite period. When that period is approaching its end, a savvy individual will have applied for an extension to their visa, or potentially unlimited leave to remain (ULTR) after five years in the UK, well in advance of the visa expiry.
If they have done so, the individual will generally be allowed to continue living and working in the UK, until such time as the Home Office has made a decision in relation to the extension or application for ULTR.
The main risk to employers in terms of immigration compliance is that employing individuals without the right to work in the UK carries serious consequences, including a fine of up to £20,000 for each illegal worker and potentially five years in prison.
Given those risks, many employers understandably take a hard line when it is unclear whether an individual is allowed to work. However, employers must balance their obligations under immigration law with their obligations under more general employment law, including in relation to unfair dismissal.
It was a failure to balance those obligations that led to a finding against the employer in this update. For ease of reference in this update, we will refer to the employer as ‘Dominos’.
The facts of the case
Mr Afzal was a Pakistani national who worked for Dominos from 2009. In 2011 he married an EEA national and was granted limited leave to remain in the UK, with a visa expiry date of 12 August 2016.
As he would then have been legally living and working in the UK for five years, he was able to apply for ULTR to allow him to remain here on a permanent basis, provided that such an application was submitted in time, i.e. by 12 August 2016.
Dominos was well-versed in employing individuals with visas, and was clear with Mr Afzal that he needed to provide evidence of a right to work after 12 August 2016. However, Mr Afzal was less than savvy about his application to the Home Office and did not submit it until the afternoon of 12 August 2016.
Mr Afzal then sent Dominos an email with attachments that he stated were evidence of his right to continue working in the UK, but Dominos had difficulty accessing the documents and as such considered Mr Afzal not to have submitted any evidence.
On that basis, Dominos concluded that Mr Afzal no longer had clearance to work in the UK and terminated his employment with immediate effect to ensure that it could not be found to be employing illegal workers. Dominos did not implement any dismissal procedure and the confirmation letter was silent in terms of an appeal.
Mr Afzal subsequently supplied the evidence of his right to work in the UK. Dominos offered him his job back, but with no continuity of employment and no pay for the period between the termination of his employment and the start of the new contract. In response, Mr Afzal claimed unfair dismissal.
The ET and EAT’s decision
The Employment Tribunal (ET) found in favour of Dominos, stating that, although his employer’s belief that he was not eligible to work in the UK was incorrect, it was genuine and reasonably held. As such, the ET considered the dismissal to be for ‘some other substantial reason’.
In addition, the ET concluded that Mr Afzal’s dismissal with immediate effect was also reasonable as Dominos had understandable concerns in relation to the potential penalties (outlined in the background above) regarding hiring illegal workers.
Somewhat surprisingly, the ET also had no qualms about there not being an appeal process, as it stated that there was ‘nothing to appeal against’. Mr Afzal appealed that decision.
Less surprisingly, the Employment Appeal Tribunal (EAT) disagreed, particularly in relation to the ET’s finding of there being nothing to appeal against.
The EAT considered the original decision to dismiss Mr Afzal quickly to be reasonable, given that Dominos genuinely believed that he was not eligible to continue working. However, Dominos’ belief was wrong, and a properly conducted appeal process would have made that clear. Upon sight of the evidence of his right to continue working, Dominos could have overturned the decision to dismiss him and allow him to keep working, with continuity of employment, without contravening any immigration legislation.
As Dominos did not allow him to provide that evidence in an appeal, his dismissal was unfair.
What does this mean?
This case does not change the law either in relation to immigration compliance or unfair dismissal, but serves as a reminder that the need for a fair dismissal procedure does not disappear simply because there are questions over an employee’s right to work in the UK.
While we always urge caution in relation to immigration issues, given the potential consequences of hiring illegal workers, it is important not to act rashly. The employer’s initial decision to dismiss was not the main problem in this case, but its decision not to follow a fair procedure by offering an appeal was its downfall.
Employers facing similar circumstances should therefore ensure that they investigate the issue as thoroughly as possible to allow them to show a genuine belief that the person can no longer work for them. The employee should be consulted with, given the chance to explain their case and informed of the potential for dismissal before any decision to dismiss is actually taken. Finally, an appeal should be offered, and if new information casts doubt on the dismissal it should be reconsidered.
If you have any questions on any of the issues raised in the above article, such as conducting right to work checks or dismissing an employee who can’t evidence a right to work in the UK, please contact Seanpaul McCahill.