“Fair” dismissal after failing to prove the right to work in the UK

20 December 2016

I got dismissed from my job, even though I am allowed to live and work in the UK! Why?

This is exactly what happened in the recent case of Baker v Abellio London Ltd ET/2302684/2015. The employment tribunal held that an employer was allowed to fairly dismiss an employee who could not produce a document that confirmed he had the right to work in the UK, even though they accepted that he was legally resident here.

The employee arrived in the UK as a child and has been living here ever since. He has the right of abode in the UK, which means he can live and work here without restrictions. The tribunal accepted that he is lawfully in the UK and can live and work here but, due to the immigration rules, specifically the Immigration, Asylum and Nationality Act 2006, sections 15 to 25 and sections 24 and 24B of the Immigration Act 1971, he is obliged to evidence his lawful status, but he could not produce a document to “confirm” that he has the right to work in the UK.

Under the Acts, an employee must provide original documents from either list A or list B (see the UKVI website for details), which prove the employee’s right to work in the UK.  The claimant in this case produced an expired passport as evidence that he had the right of abode. Therefore, the employer could not accept the passport as proof that he had the right to work, because an expired passport is not an acceptable document under Lists A or B.).

In the judgement, the tribunal went on to explain that the employer had loaned the employee £350 to obtain a new passport and for him to make arrangements to have the right of abode transferred into the new passport. An application to transfer conditions costs £808 to file using the fast track process or £272 or £308 to send by post to the Home Office, with a potential waiting time of 18 weeks for the application to be finalised. Further, the endorsement wouldn’t have appeared in the passport but on a Biometric Residence Permit (BRP), which would have satisfied the rules and been an acceptable document to prove he had the right to work in the UK. However, the claimant did not take these steps and subsequently lost his job.

The tribunal accepted that the employer had been patient and very supportive of the claimant and took into account the fact that the employer:

  • loaned him funds to obtain the new passport;
  • wrote to the claimant and requested that he prove he had applied to the Home Office for the requisite documents;
  • warned him of the risk of dismissal;
  • gave him opportunities to obtain proof; and
  • allowed him to appeal against his dismissal.

The case was very much decided on its facts and there may be similar cases in the future where the tribunal will find against an employer on the basis that the employer should have done more.

However, despite the employer’s willingness to help the claimant, employees are legally responsible for providing the BRP card, including finding the money to fund the application at the Home Office. The claimant in this case will eventually need to apply to the Home Office because any other employer who is aware of their obligations will require the same evidence to confirm he has the right to work here. One wonders how he will do that now, given that he is unemployed and without an employer helping to fund the application. It doesn't seem fair that a person who is legally resident in the UK but doesn't have the funds to get the endorsement transferred onto a BRP card loses their job. 

The claimant was lawfully in the UK, which the court recognised, but his employers were allowed to dismiss him because he could not "prove" he had the right to work to the immigration standard. The anomaly here is that, when entering the UK, an individual who has an endorsement in an expired passport confirming they can lawfully enter the UK can rely on this as evidence of their right to enter the UK. However, it is unfortunate that the same principle doesn't apply as proof of one’s right to work in the UK. Surely this anomaly should be rectified? 

Also, from an immigration perspective, the claimant had been employed for two years before it appeared that the employer undertook the check. Had the right to work check been carried out at the time the claimant was first recruited and his passport was valid then, the employer would have had the statutory protection and the employee could have continued to be employed. The rules were different then, and if the employer established that he had no time limit on how long he could stay in the UK, they would have satisfied their obligations and that would have been the end of the matter. Therefore, despite the employer’s apparent reasonableness, the cost and inconvenience for the claimant arose because the employer only carried out the right to work check two years later.

However, from an employer’s perspective, they are caught between a rock and a hard place. They wanted to ensure (albeit a bit late) that those working in their organisation have the right to work because they require the statutory protection afforded by the Acts. Since 12th July 2016, under section 21 of the Immigration Act 2006 (amended by section 34 of the 2016 Act) an employer can be held criminally liable if they “knowingly employ someone who does not have the right to work”.  Therefore, an employer can be subjected to fines of up to £20,000 per illegal worker, or possibly prison for up to 5 years. So it can be daunting for an employer to find an employee who “can’t prove their right to work in the UK”. In such a circumstance, a dismissal appears to be “fair”.  

The message for employers to take away from this case is to get the checks done straightaway and ensure that any gaps are filled. Criminal liability is a greater concern than the risk of a tribunal claim. And, in any event, the case demonstrates the importance of the checks as they can make a dismissal fair, if the reason for dismissal is that the employee has not produced the requisite documents.

A more difficult question is whether employers have to pay the bill or at least facilitate a loan for the costs of passports and endorsements for its employees because of the risk that a dismissal for not producing the documents may be found to be unfair if the employer has not been so generous. If that is what the tribunals expect to see, then that could make many people with a right to work in the UK too expensive to employ.

Further information

Should you have any questions about the right to work in the UK and related checks, please contact Marcia Longdon or a member of our immigration and employment teams.

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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