UK employers face delicate balancing act with immigrants' ‘right to work’

A recent decision by the UK’s Employment Appeals Tribunal (EAT) highlights the difficult balancing act that employers face when an employee’s right to work in the country is in doubt.

If they continue with such employment, they risk civil (and sometimes criminal) penalties for breaching immigration laws, which require employers to prevent illegal working. End the employment though and they risk facing claims under employment law, which include unfair dismissal and race discrimination.

What was the recent EAT case about?

The case of Afzal v East London Pizza Ltd concerned an employee from Pakistan. His employment had first started in 2009, initially as a delivery driver. Afzal was promoted and his career advanced.

In 2011, he married a national from the European Economic Area and acquired leave to work in the UK, which expired on 12 August 2016. This meant he could apply for permanent residence and his right to work would continue. As long as his application was made by 12 August 2016, Afzal was entitled to work while the authorities considered it.

During June and July 2016, East London Pizza Ltd reminded him of the need to provide evidence that he had made his application in time. He was asked to do so before 11 August 2016. On 12 August 2016, Afzal sent an email to his employer, stating that it contained evidence of his immigration application. The employer could not open the attachments.

East London Pizza Ltd was concerned about possible civil and criminal penalties if it continued employing Afzal, so it sent him a notice of termination of employment and did not offer a right of appeal.

Following his dismissal, Afzal produced satisfactory evidence of his right to work. As a result, the employer offered to re-engage him but only as a new starter. This meant he would lose his accrued continuous period of service and would not receive any pay for the period between his dismissal and re-engagement. Afzal complained of unfair dismissal to the employment tribunal.

In the first instance, the employment tribunal held that East London Pizza Ltd genuinely believed Afzal’s employment was prohibited by statute. This belief amounted to “some other substantial reason” for dismissal. “Some other substantial reason”, often known as ‘SOSR’, is a potentially fair reason for dismissal.

In this case the tribunal held that, given the lack of evidence, a reasonable belief amounted to a substantial reason. Fearing exposure to penalties also made it reasonable for the company to act as it did.

Another issue under consideration was whether the dismissal had been unfair as no right of appeal had been allowed. But the Judge dismissed this claim on the basis that there was nothing to appeal against. The unfair dismissal claim was also rejected.

As a result, Afzal appealed to the EAT. The Judge overturned the tribunal’s decision and held that:

• Providing an appeal against dismissal is virtually universal and recommended by the Acas Code; 
• But there will be cases where a dismissal is fair, despite the absence of an appeal. This would be where, in the circumstances, an appeal was futile and would not have altered the decision to dismiss the case;
• But Afzal v East London Pizza Ltd was not one of those cases, and so it was wrong to conclude that there was nothing to appeal against. In this instance, if there had been an appeal, Afzal could have used the opportunity to demonstrate that he did have a right to work. For example, he could have produced the documents that his employer was unable to open in his email, or he could have provided his reference number so that his employer could use the Home Office’s employer checking service. Had his employer done so, Afzal could have been reinstated without East London Pizza Ltd breaching its obligations under immigration law.

What should employers do when unsure?

Sometimes, there is no perfect solution and, unfortunately, there will usually be some risk for employers however they deal with someone who cannot produce evidence of their right to work. But employers can help to manage these risks by:

• Making a note in their diary of when an employee’s right to work is time-limited;
• Reminding the affected employee in good time before their right to work expires and, if necessary, explaining what documents they will need to provide;
• Acting very quickly should concerns over a right to work being lacking, lead employers to dismiss the affected employee. If at all possible, conduct some form of dismissal procedure, even if time does not allow for it to be as full a process as usual. Giving staff members an opportunity to explain their immigration position and produce evidence is particularly important;
• Allowing the affected employee a right of appeal, if you are dismissing them. Bear in mind that your reason for dismissing them should not be the illegality/contravention of a statutory enactment if there is any possibility that the employee could, in fact, have the right to work. Employer should instead rely on ‘some other substantial reason’ as the potentially fair reason for dismissal. In the Afzal v East London Pizza Ltd case, that substantial reason was the genuine belief that employing Afzal was illegal.
• Considering reinstatement, if satisfactory evidence of the right to work is produced following dismissal.

It is also worth noting that many immigration applications may be fast-tracked, for an additional fee.

Ultimately, employers will need to weigh up the risks posed by a number of potential breaches of the law, with the help of legal advice. A compliant way forward can often be found.

But in some circumstances, it may not be possible to remain confident of staying on the right side of both immigration and employment law. Faced with this choice, many employers prefer to avoid criminal sanctions, including a jail sentence and/or fines, even if it means having to pay financial compensation for civil employment law claims.  

Anne-Marie Balfour is a solicitor and legal director in the employment, pensions and immigration team at Charles Russell Speechlys LLP. She advises employers and senior executives on all aspects of employment law. Anne-Marie has particular expertise in employment law with an immigration angle and her articles are frequently published in the national and trade press. 

A recent decision by the UK’s Employment Appeals Tribunal (EAT) highlights the difficult balancing act that employers face when an employee’s right to work in the country is in doubt.

If they continue with such employment, they risk civil (and sometimes criminal) penalties for breaching immigration laws, which require employers to prevent illegal working. End the employment though and they risk facing claims under employment law, which include unfair dismissal and race discrimination.

What was the recent EAT case about?

The case of Afzal v East London Pizza Ltd concerned an employee from Pakistan. His employment had first started in 2009, initially as a delivery driver. Afzal was promoted and his career advanced.

In 2011, he married a national from the European Economic Area and acquired leave to work in the UK, which expired on 12 August 2016. This meant he could apply for permanent residence and his right to work would continue. As long as his application was made by 12 August 2016, Afzal was entitled to work while the authorities considered it.

During June and July 2016, East London Pizza Ltd reminded him of the need to provide evidence that he had made his application in time. He was asked to do so before 11 August 2016. On 12 August 2016, Afzal sent an email to his employer, stating that it contained evidence of his immigration application. The employer could not open the attachments.

East London Pizza Ltd was concerned about possible civil and criminal penalties if it continued employing Afzal, so it sent him a notice of termination of employment and did not offer a right of appeal.

Following his dismissal, Afzal produced satisfactory evidence of his right to work. As a result, the employer offered to re-engage him but only as a new starter. This meant he would lose his accrued continuous period of service and would not receive any pay for the period between his dismissal and re-engagement. Afzal complained of unfair dismissal to the employment tribunal.

In the first instance, the employment tribunal held that East London Pizza Ltd genuinely believed Afzal’s employment was prohibited by statute. This belief amounted to “some other substantial reason” for dismissal. “Some other substantial reason”, often known as ‘SOSR’, is a potentially fair reason for dismissal.

In this case the tribunal held that, given the lack of evidence, a reasonable belief amounted to a substantial reason. Fearing exposure to penalties also made it reasonable for the company to act as it did.

Another issue under consideration was whether the dismissal had been unfair as no right of appeal had been allowed. But the Judge dismissed this claim on the basis that there was nothing to appeal against. The unfair dismissal claim was also rejected.

As a result, Afzal appealed to the EAT. The Judge overturned the tribunal’s decision and held that:

• Providing an appeal against dismissal is virtually universal and recommended by the Acas Code; 
• But there will be cases where a dismissal is fair, despite the absence of an appeal. This would be where, in the circumstances, an appeal was futile and would not have altered the decision to dismiss the case;
• But Afzal v East London Pizza Ltd was not one of those cases, and so it was wrong to conclude that there was nothing to appeal against. In this instance, if there had been an appeal, Afzal could have used the opportunity to demonstrate that he did have a right to work. For example, he could have produced the documents that his employer was unable to open in his email, or he could have provided his reference number so that his employer could use the Home Office’s employer checking service. Had his employer done so, Afzal could have been reinstated without East London Pizza Ltd breaching its obligations under immigration law.

What should employers do when unsure?

Sometimes, there is no perfect solution and, unfortunately, there will usually be some risk for employers however they deal with someone who cannot produce evidence of their right to work. But employers can help to manage these risks by:

• Making a note in their diary of when an employee’s right to work is time-limited;
• Reminding the affected employee in good time before their right to work expires and, if necessary, explaining what documents they will need to provide;
• Acting very quickly should concerns over a right to work being lacking, lead employers to dismiss the affected employee. If at all possible, conduct some form of dismissal procedure, even if time does not allow for it to be as full a process as usual. Giving staff members an opportunity to explain their immigration position and produce evidence is particularly important;
• Allowing the affected employee a right of appeal, if you are dismissing them. Bear in mind that your reason for dismissing them should not be the illegality/contravention of a statutory enactment if there is any possibility that the employee could, in fact, have the right to work. Employer should instead rely on ‘some other substantial reason’ as the potentially fair reason for dismissal. In the Afzal v East London Pizza Ltd case, that substantial reason was the genuine belief that employing Afzal was illegal.
• Considering reinstatement, if satisfactory evidence of the right to work is produced following dismissal.

It is also worth noting that many immigration applications may be fast-tracked, for an additional fee.

Ultimately, employers will need to weigh up the risks posed by a number of potential breaches of the law, with the help of legal advice. A compliant way forward can often be found.

But in some circumstances, it may not be possible to remain confident of staying on the right side of both immigration and employment law. Faced with this choice, many employers prefer to avoid criminal sanctions, including a jail sentence and/or fines, even if it means having to pay financial compensation for civil employment law claims.  

Anne-Marie Balfour is a solicitor and legal director in the employment, pensions and immigration team at Charles Russell Speechlys LLP. She advises employers and senior executives on all aspects of employment law. Anne-Marie has particular expertise in employment law with an immigration angle and her articles are frequently published in the national and trade press.