Using the Employer Checking Service? Employers Beware!

This article serves as a reminder of the limited scope of responses the ECS may give, and that those responses may not always give the definitive answer as to whether an employee (or prospective employee) has the right to work in the UK.

You must therefore tread very carefully when balancing competing duties to ensure all employees have the right to work in the UK and that employees are treated fairly. Employing an illegal worker could result in a civil penalty of up to £20,000.

Badara v Pulse Healthcare Limited

The employer, Pulse Healthcare, mistakenly believed that Mr Badara's right to work in the UK expired on the expiry of his residence card issued to him as the family member of an EEA national. Under EU law, however, it continues automatically.

The employer submitted ECS requests for confirmation of Mr Badara's right to work in the UK, but the responses all came back as negative. The employer relied on those responses in maintaining its decision to stop giving Mr Badara work and pay.

The employer had a clause in its contract which stated that employees had to produce evidence of their eligibility to work in the UK. The Employment Appeal Tribunal stated that relying on this clause could amount to unauthorised deduction from wages and indirect discrimination, and remitted those claims to the tribunal for reconsideration. A direct discrimination claim was unsuccessful.

Mr Badara had been retained as a self-employed contractor but was subsequently found by the tribunal to have been an employee. If he had been engaged as an employee from the outset, the employer may have been able to dismiss him for "some other substantial reason" if he had failed to cooperate with their reasonable requests to establish his right to work. However, they would need to have acted reasonably during such a process, which might include being prepared to accept alternative evidence of his immigration status.

What Can You Do to Prevent This?

The case demonstrates the danger for employers in relying on ECS responses alone. In situations like this one, you may need to conduct their own investigations into an employee's immigration status. This should occur even if the documentation produced and relied on is not sufficient to provide them with a 'statutory excuse' under the prevention of illegal working legislation.

Ensure that you:

• keep appropriate proof of right to work from the outset
• keep track of when repeat checks are required
• are aware that an employee's immigration status may change over time, and that additional or alternative documents may be required

Employers should seek legal advice where they are uncertain of an employee's immigration status and whether the employee has their right to work in the UK.

For specialist legal advice on employee immigration status, please contact Tom Brett Young in our Employment Law team on 0121 227 3759, or complete the form below.