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23rd January 2017

Can you dismiss if an employee has the right to be in the UK but no evidence of his right to work?


23rd January 2017

Can you dismiss if an employee has the right to be in the UK but no evidence of his right to work?

The case of Baker v Abellio London Ltd is right up my street as the Employment Tribunal had to consider both immigration and employment law aspects.

The Facts

The situation was that Mr Baker, a Jamaican national, had the right to live indefinitely in the UK. Unlawfully, Abellio Limited hadn’t completed a right to work check at the start of his employment, it was only when they reviewed their files they noticed they had no record/evidence of his right to work in the UK. The company asked him to provide them with evidence, at which time, Mr Baker’s passport had expired and he had no other evidence of this right.

The Company lent him £350 to cover the cost of obtaining a new passport with an endorsement in the passport confirming his right to work in the UK. Mr Baker applied for the passport, but not the endorsement. The company took advice from the Home Office, gave Mr Baker a short period to obtain the necessary documents and warned him of the consequences if the evidence was not provided. Mr Baker ignored the company’s requests and the company dismissed him for not providing proof of his right to work in the UK (under some other substantial reason). His appeal was rejected and he claimed unfair dismissal.

The Decision

The Employment Tribunal concluded that it was fair for Abellio to dismiss Mr Baker for not providing evidence of his right to work in the UK.

The Tribunal had sympathy for Mr Baker but confirmed that such evidence was crucial to work legally in the UK. The key points in concluding that Abellio acted within the range of reasonable responses was the process they had completed. The company had provided him with a loan to cover the costs, written to him seeking the evidence required, warned him of the risk of dismissal, given him more than one chance to obtain proof and allowed him to appeal.

Learning points

Generally, this should be a discreet point as right to work checks must be completed before employment begins. However, we all know that, even with best intentions, this process can be missed or documents go missing. We have only recently spoke with two clients who were not completing right to work checks and advised them of the correct process. There is a helpful PDF from the Home Office on “Lists A and B” that I would urge all companies to refer too. You will not have a statutory excuse if an employee is later found to be working illegally.

This should be welcome news for employers that find right to works haven’t been completed properly. It would be a heavy penalty for the company if such a failing were identified by the Home Office. Therefore, if you act fairly and reasonably during the process, this should lead to a fair dismissal.

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