If your company employs foreign workers, you need to make sure that they have the right to work in the UK. If they don’t provide evidence for that right, regardless of how long they have actually lived here, what are your options?
In the recent case of Baker v Abellio London Ltd, the employment tribunal said that an employer was legally entitled to dismiss a legally resident employee who could not produce the documentary evidence to back up his right to work in the UK.
Mr Baker, who was born in Jamaica, had lived in the UK since he was a child. He had the right of abode in the UK (which meant that he was entitled to live in the UK indefinitely and work here).
He worked for Abellio, a London-based bus operator. When he started to work for them, they did not carry out a Right to Work check on him, which they should have under the law. This meant that he had not been asked to produce supporting evidence either.
Some time later, Abellio were in the process of reviewing their personnel files and realised that they had no documentary evidence of Baker’s right to work in the UK. They asked him if he could furnish them with the required proof.
Normally he would just give them his Jamaican passport, which would give him the right to work in the UK, but by the time they requested this, it had expired and he had no other evidence to give them.
Abellio were keen to make the process of renewing his Right to Work as easy as they could and so they lent him the money he needed to obtain a new passport and an endorsement on a Biometric Residence Permit (BRP) that would confirm he was able to work legally in the UK.
However, although Baker did apply for the passport, he didn’t make an application for the endorsement.
Abellio got in contact with the Home Office to find out what they should do in this situation. At the same time, they wrote to Baker, giving him more time to get the documentation that they had asked for and advising him of the consequences if he did not do so.
The Home Office confirmed that the passport on its own, without an accompanying endorsement, would not be enough to confirm Baker’s right to work.
However, Baker ignored the requests that Abellio had made and furthermore, did not attend meetings to discuss what was going on; those meetings would have covered the risk of dismissal.
Faced with this, Abellio terminated his employment. He appealed against the dismissal but this was rejected and he took the company to the Employment Tribunal, claiming unfair dismissal.
What did the Tribunal say?
The Tribunal accepted that Baker had the right to live and work in the UK, but also said that Abellio had done the right thing by asking him to provide evidence to prove this. As he had not done so, the Tribunal said that Abellio had no option but to terminate his employment.
In reaching their judgment, the Tribunal took into account the dismissal process that Abellio had followed. They had:
investigated Baker’s immigration status;
given him plenty of opportunity to get hold of the evidence he needed to confirm his right to work,
set out in writing what they wanted him to do so that there could be no misunderstanding,
told him that he risked being dismissed if he did not provide the information that they had asked for,
lent him the money he needed to get his passport renewed and obtain a BRP card (a process that would otherwise have been very expensive for him), and
allowed him the opportunity to appeal against the dismissal decision.
What should employers do?
It’s worth taking note of the fact that the case was decided on the facts presented. There may be similar cases in the future where the Tribunal will decide that the employer should have done more to help the employee. The point to remember is that acting in a fair and reasonable way during the investigation and dismissal process will stand the employer in good stead if an employee termination results in a claim for unfair dismissal.
Abellio’s tardiness in getting the Right to Work checks completed reinforces how important it is that these checks should be carried out before an employee starts with the company. Breaching section 35 of the Immigration Act 2016 can lead to up to 5 years’ imprisonment as well as a separate civil penalty that can be as much as £20,000 per illegal worker.
There are important steps that employers should take to protect themselves from a claim of unfair dismissal and at the same time reduce the risk of a penalty for failing to carry out the required checks.
The Home Office produces a Right to Work checklist for employers to make sure that they have obtained the required documentation from their employees.
Employers need to have up-to-date records of the status of any visa holders they employ, including the date that the visa expires, so that employees can act in good time to obtain renewals. This could be achieved by the use of automatic reminders in HR systems.
Any applications that are made should be sent by a tracked delivery method so that an employee can prove to their employer that they have made the application and any delay or loss can be swiftly identified.
Keep track of the process used
Employers need to let employees know in writing what they are expected to provide in the way of evidence, including the date required and what will happen if it is not produced.
With employee consent, employers should use the Employer Checking Service to obtain a temporary six-month defence against charges of illegal working whilst the employee obtains their visa.
Employers can offer support to employees who are making applications for the Right to Work; this could include time off to attend interviews with the Home Office or legal advice regarding an application. Records should be kept of any support offered so that it can be adduced if an unfair dismissal claim is made further down the line.
Appealing a decision
A key stage of the dismissal process is the appeal stage. This can help to identify any procedural errors in the original process and it could also be the case that whilst the appeal is pending, the required documentation arrives.
It may be the case that delays outside the control of the employee produce the need for a longer time period in which to lodge an appeal than would normally be considered. The employer may wish to grant a little leeway in such situations.