When Will a Dismissal for Failure to Produce Evidence of Right to Work in UK be Fair?
Employers are coming under significant and increased pressure to ensure that they check that employees and prospective employees have the right to work in the UK - as we have recently reported.
With right to work checks coming increasingly under the microscope, what action should an employer take when faced with an existing employee who does not produce satisfactory right to work documents when requested to do so?
An Employment Tribunal (ET) found that the employer fairly dismissed an employee who had failed to produce evidence of his right to work in the UK when asked by his employer to do so in the case of Baker v Abellio London Ltd. Mr Baker informed his employer that, whilst he was born in Jamaica and had a Jamaican passport, he had the right of abode in the UK. His Jamaican passport had expired and he was unable to provide any other evidence to satisfy his employer that he had the right to work in the UK.
The employer gave Mr Baker the opportunity to apply for appropriate documentation to evidence that he had the right to work in the UK, but he failed to do so. A meeting was arranged with the purpose of discussing the position, and the employer's options (which Mr Baker was informed included dismissal). Mr Baker did not attend the meeting and, in his absence, his employment was terminated. Mr Baker pursued an unfair dismissal claim at the ET.
The ET found in the employer's favour, noting that amongst other things the employer 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
- given him opportunities to obtain proof
- allowed him to appeal against his dismissal
Best Practice
The consequences of failing to carry out appropriate right to work checks are serious. Employers can be fined up to £20,000 per employee if the correct right to work checks have not been undertaken and a worker is found to be working unlawfully.
We recommend that employers ensure that appropriate right to work checks are carried out before employment commences, but if an immigration issue is found at a later stage. For instance, if an employee's visa expires during their employment, an employer must act decisively but carefully.
A migrant worker has employment rights and may (for instance) be able to pursue an unfair dismissal claim if their employer acts in a capricious or rash manner. It is also possible that the employee might have a continuing right to work while an application to extend their stay in the UK is being considered, so it is vital that employers investigate the circumstances thoroughly.
As in the case set out above (which could, of course, be appealed), an employer should follow a fair procedure, meet with the employee, understand the immigration issues, discuss the immigration concerns and look at the alternatives that may be available before deciding to dismiss.