Immigration status: when is it fair to dismiss an employee?

Under the Employment Rights Act 1996, a dismissal will be fair if an employer can show that;

1) The reason for the dismissal is one of five ‘potentially fair reasons’; and

2) They acted reasonably in dismissing the employee for the above reason.

One of the ‘potentially fair reasons’ in 1) above is known as ‘some other substantial reason’ (SOSR). This can include where continuing employment would be a breach of a statutory duty.

It is illegal to employ an individual who does not have the legal right to work in the UK, or who is breaching their conditions of stay in the UK. Employers are required to conduct pre-employment checks in order to ensure compliance.

The Employment Appeal Tribunal has recently had to consider whether an employer dismissed an employee fairly because of a mistaken belief they had no longer had the right to work in the UK.

Facts

Mr Nayak was employed by Royal Mail Group (‘RMG’) from 7 January 2008, until 9 May 2014, when his employment was terminated because RMG believed he no longer had the right to work in the UK. He had had a Tier 1 (post-study) visa that expired in 2010. As he was due to return to study, he applied for a Tier 4 (general) student migrant visa. His application was initially refused. He successfully appealed to the immigration tribunal in May 2011, and his application was therefore passed to the Home Office for consideration. While his appeal was being dealt with, he was entitled to remain and work in the UK under the terms of his Tier 1 visa.

To minimise any risks of illegally employing someone, RMG had a policy of checking an employee’s immigration status every six months. From March 2012, RMG made enquiries regarding Mr Nayak’s immigration status. The Home Office, in March 2012, confirmed that he had the right to work ‘on the basis of an outstanding appeal’. They also requested updates from Mr Nayak himself in August 2012, January 2013 and February 2013 but he did not reply.

Between December 2013 and May 2014, RMG made further enquiries of Mr Nayak to try to establish his immigration status. He was informed that his right to work at RMG could only last while his application for his Tier 4 visa remained outstanding. RMG were understandably concerned that it was no longer safe to rely on the outstanding appeal, given the passage of 4 years since the original application. They therefore warned Mr Nayak that his continued failure to provide the necessary documentation may result in his dismissal.

Despite the warnings, Mr Nayak failed to produce any evidence and was therefore dismissed on 9 May 2014. He appealed the decision and was given a further 42 days to prove his status. RMG suggested he make a data subject access request to the Home Office, which he failed to do. The decision to dismiss was upheld and he therefore brought a claim for unfair dismissal.

The employment tribunal (ET) rejected the claim. It held that a reasonable employer would not be satisfied that the employee’s visa application was still pending and that RMG’s policy in carrying out the six-monthly checks was ‘a responsible one’. The Employment Appeal Tribunal (EAT) also dismissed the appeal, considering that the dismissal was both substantively and procedurally fair. RMG had taken reasonable steps to investigate and they could not be expected to wait indefinitely for the appeal outcome. The EAT therefore held that RMG acted reasonably in treating this as a SOSR dismissal.

Comments and practical advice

This decision provides helpful guidance to employers, particularly where they are unsure of an employee’s immigration status. It highlights that a SOSR dismissal may still be fair where an employer has a reasonable and genuine belief that the employee no longer has the right to work in the UK, irrespective of whether that belief turns out to be correct or not. It was also a relevant factor that RMG had carried out a reasonable investigation.

In light of this decision, employers should also regularly check the progress on an employee’s outstanding appeal to ensure that they do always have the right to work in the UK. Where there are concerns, thorough investigations should be carried out before taking any further action.

Please find the full transcript of the case here. For any further questions or information, please contact a member of the Devonshires Employment Team.

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