Mr Baker was a Jamaican national who, it was accepted, had the right to work in the UK. He was employed by Abellio as a bus driver.
In an effort to comply with s.15 of the Immigration, Asylum and Nationality Act 2006 (IANA), Abellio decided to undertake an audit of its workforce to check that it held sufficient documentation to evidence each employee's right to work in the UK. It was identified that Mr Baker's documentation was lacking and he was asked to produce evidence of his right to work.
Abellio asked Mr Baker to produce documentation which, had it been obtained prior to commencing employment, would have provided Abellio with a statutory excuse to the offence of employing an illegal worker.
Mr Baker was unable to provide the required documents and was suspended. He was afforded an opportunity to obtain the necessary documents, which he failed to obtain. Abellio ultimately decided to dismiss Mr Baker on the basis that he had failed to provide them with satisfactory documentary evidence of his right to work in the UK.
Mr Baker brought a claim for unfair dismissal. Abellio argued that he was dismissed for one of the potentially fair reasons outlined in the Employment Rights Act 1996 (ERA), namely 'illegality'. This enables an employer to fairly dismiss an employee if their continued employment would contravene an enactment. The Employment Tribunal (ET) accepted Abellio's arguments, dismissing Mr Baker's claim. Mr Baker appealed to the EAT.
The EAT overturned the ET decision on the basis that:
The EAT did note that Mr Baker's dismissal may have been fair for 'some other substantial reason' (SOSR), if Abellio had reasonably, but mistakenly, believed that Mr Baker's continued employment was illegal. However, it held that the ET had not obtained sufficient information to enable it to conclude whether this was the case in these particular circumstances and it therefore remitted the case back to the ET to determine.
As we suggested following the decision of the ET in this case, employers should ensure that they always carry out the correct right to work checks before employment commences. Not only will this prevent the above situation arising, but employers who do not do so risk fines of up to £20,000 if an employee is found to be working unlawfully.
However, if checks are carried out belatedly, then employers should be wary of continuing to employ those who cannot evidence the right to work. Whilst continued employment may not necessarily be illegal, and therefore may not justify a dismissal on the grounds of illegality, if an employer cannot adequately satisfy themselves that an employee has the right to work, the risk that the employee doesn't have permission to work could justify a dismissal for SOSR. A fair procedure will need to be followed and adequate steps taken to try to establish the right to work.