A recent EAT decision highlights the tension that can arise between immigration law and employment law, particularly the law around unfair dismissal, and the risks of an employer deciding to dismiss an employee who has the right to work, but is simply unable to evidence it (Baker v Abellio London Ltd).

Background law

All employers have an obligation not to employ illegal workers under section 15 of the Immigration, Asylum and Nationality Act 2006 (the Act).

An employer who has "reasonable cause" to believe that an individual is working illegally may face legal and commercial penalties, including:

• criminal liability;
• civil penalties of up to £20,000 for each illegal worker; and
• the prospect of being named and shamed on the UK Visas and Immigration (UKVI) website.

Section 15(3) of the Act, however, provides a statutory excuse from the penalties above if the employer can show that it undertook certain document checks – known as right to work checks.

Facts

Mr Baker was a Jamaican national who worked as a bus driver for Abellio.

Having discovered that one of its employees did not have the correct right to work documentation, Abellio carried out right to work checks on all of its employees, in order to avoid the offence of employing illegal workers and to benefit from the “statutory excuse”.

Mr Baker was unable to produce a valid passport upon request but maintained that he had the right to live and work in the UK. This was later confirmed to Abellio by the Home Office.

Nevertheless, as Mr Baker did not provide satisfactory documentary evidence of his right to work, Abellio suspended him without pay. After Mr Baker continued to be unable to provide a valid passport or other documentary evidence, he was dismissed on the grounds that it would be "contravening a restriction imposed by an enactment” to continue to employ Mr Baker (this is one of the potentially fair reasons for dismissal which is commonly referred to as "illegality").

The Employment Tribunal found that the dismissal was fair in that Abellio had established illegality as the reason for dismissal. It went on to say that dismissal for that reason was fair because Abellio was acting within the reasonable range of responses in dismissing Mr Baker and had followed a proper procedure in doing so.

The Tribunal held in the alternative that Abellio had fairly dismissed Mr Baker for "some other substantial reason" (SOSR) (another potentially fair reason for dismissal), given that Mr Baker was legally entitled to work but simply could not prove it.

Decision

The EAT upheld Mr Baker's appeal.

The EAT found that illegality, as a potentially fair reason for dismissal, only applies in situations where continuing to employ someone will involve the employer or the employee breaking the law. To rely on that reason, it must actually be the case that continuing to employ the employee is illegal.

In this case, Abellio did not dismiss Mr Baker because he did not have the right to work in the UK. Instead, they dismissed him because they were not able to complete the right to work checks and establish a statutory excuse. However, there was no legal obligation on Abellio to carry out right to work checks, so illegality was not the correct label to apply.

The EAT went on to say that dismissing an employee in this situation on SOSR grounds could potentially be fair if the employer had a genuine but erroneous belief that employment was illegal. The fairness of a SOSR dismissal in Mr Baker's case was remitted to a new Employment Tribunal for reconsideration because the original Tribunal had not considered all relevant evidence in respect of this part of Abellio's defence. In particular, the Tribunal had not considered whether it was reasonable for Abellio to have had held the belief that the employment was illegal bearing in mind that the Home Office had confirmed that he had the right to remain and work in the UK.

Comment

Dismissals in circumstances where an employee is unable to evidence their right to work in the UK will rarely be straightforward, but this decision does not mean that dismissal is a step an employer cannot take. Ultimately, even if the Home Office has confirmed a right to work, this will be no defence against a penalty under section 15 of the Act if the employer has not conducted proper right to work checks themselves.

However, the judgment does demonstrate that employers must weigh up the risks of not being able to rely on the statutory excuse if an employee cannot provide appropriate evidence against the risks of dismissing the employee. Having considered those risks, if the employer does decide to dismiss, it should do so on SOSR grounds relying on the fact that it has reasonable cause to believe that there is no right to work (i.e. the employee had failed to provide proper evidence) and ensure that it follows a fair procedure prior to dismissal.

Baker v Abellio London Ltd