The right to work in the UK continues to be a serious concern for employers as penalties for employing those who do not have the right to work are ramped up and the issue remains firmly on the Government's agenda. Brexit is likely to make the issue even more prominent. Two cases in 2016 – Nayak v Royal Mail Group and Baker v Abellio give employers some reassurance that if their procedures are robust, fair and reasonable the tribunals and courts will support them in dismissing employees who cannot clearly show a right to work in the UK.
In the case of Nayak v Royal Mail Group Ltd the Scottish Appeal Tribunal upheld an employment tribunal's decision that Mr Nayak was fairly dismissed for 'some other substantial reason' because his employer had a genuine and reasonably-held belief that he was no longer entitled to work in the UK.
The tribunal had relied on four uncontradicted pieces of evidence:
- enquiries Royal Mail had made of the Home Office prior to dismissing Mr Nayak;
- Royal Mail's inability to obtain up-to-date information about Mr Nayak's immigration status from the Home Office;
- the repeated requests Royal Mail made of Mr Nayak over a much longer period than their own policy required; and
- Mr Nayak's persistent failure to cooperate with Royal Mail's enquiry by refusing to contact the Home Office himself with a request for confirmation of the position, to which the Home Office would have been under a duty to respond.
The EAT agreed with the tribunal that all this evidence clearly supported a genuine belief on Royal Mail's part. Mr Nayak's conduct was a particularly significant feature in the development of Royal Mail's belief that his immigration status may have changed, given that it would have plainly been in his own interest to cooperate with the requests for information.
Similar issues arose in the employment tribunal case Baker v Abellio. During routine right to work checks Abellio asked Mr Baker, who was born in Jamaica but has lived in the UK since childhood, to provide evidence of his right to work in the UK. Whilst Mr Baker has the right of abode in the UK, his Jamaican passport had expired and he had no other evidence of his right to work. Abellio lent £350 to Mr Baker to cover the cost of obtaining a Jamaican passport with an endorsement confirming his right to work in the UK. Mr Baker applied for a passport, but not the endorsement. The Home Office told Abellio that the passport alone, without an endorsement, was not sufficient evidence of the right to work.
Abellio wrote to Mr Baker to ask him to obtain the endorsement but he did not, nor did he attend a meeting with Abellio to discuss the situation although he knew dismissal was a possibility. Abellio then dismissed Mr Baker for failing to prove his right to work in the UK. Mr Baker appealed unsuccessfully and then brought a tribunal claim.
The tribunal was sympathetic to Mr Baker but endorsed Abellio's insistence that he provide evidence of his immigration status, despite his undisputed legal right to be in the UK. It considered that Abellio had no option in the circumstances and noted in particular that it had investigated Mr Baker's immigration status; explained verbally and in writing to him what evidence he had to produce; warned him of the risk of dismissal; provided him with a loan to cover the costs; given him opportunities to obtain proof; and allowed him to appeal against his dismissal.
The two cases deal with a not uncommon scenario in which the employer is caught between the requirements of the right to work legislation and the insistence of the employee that they are entitled to live and work in the UK. Individuals who have lived in the UK all their lives pose a particularly hard problem for an employer. The Abellio case in particular provides a checklist for dealing with this type of situation in a way which controls the risk of an adverse finding in the employment tribunal.
Employers should also be conscious of the distinction between dismissing on the basis of a reasonable belief that someone is not entitled to work in the UK , where the basis for dismissal is 'some other substantial reason' and dismissing because of a statutory prohibition. In the former case it is enough for the employer to hold a reasonable belief, based on all the information in front of it at the time it decides to dismiss. In the latter the employer must actually know that the employee has no right to work in the UK. That can be a high hurdle to surmount, particularly where the facts of the employee's status are complex or communications from the Home Office are not completely clear.