UK ‘right to work’ dismissals: A delicate balancing act

UK employers have a delicate balancing act between complying with immigration and employment law. 

On the one hand, it is unlawful to employ an adult who is subject to immigration controls if they do not have valid ‘leave to enter’ or ‘leave to remain’ status, or if they have a valid leave to enter or remain in the UK but are not permitted to work. If employees do not have ‘right to work’ status, their employer can face fines and even prison. As a result, given the threat of civil and criminal sanctions, most are careful to avoid employing people who are not eligible for work. 

On the other hand, focusing too heavily on immigration law obligations alone can lead to Employment Tribunal claims. Employment Tribunals can seem unsympathetic to employers facing legal claims that arise from their efforts to prevent illegal working from taking place.

If an employee loses the right to work, or is discovered never to have had that right, employers must act swiftly to avoid penalties under immigration law. But in doing so, they still need to take employment legislation into account and, in particular, the statutory protection employees have in relation to unfair dismissal, race discrimination and unlawful deductions from wages. 

In November 2017, the Employment Appeals Tribunal (EAT) issued a judgment in the Baker v Abellio London case, which serves as a reminder of this predicament:

What happened in the Baker case?

In the Baker case, the employee was a Jamaican national. He was not subject to immigration control and had the right to live and work in the UK. But when Abellio London undertook right to work checks, Baker failed to provide satisfactory documentary evidence of his right to work in the country. Therefore, he was suspended without pay and was ultimately dismissed. 

For a dismissal to be fair, employers must show both a potentially fair reason for making it and that a fair procedure was followed. Baker complained of unfair dismissal to the Employment Tribunal but it did not uphold his claim. 

Abellio London relied on s98(2)(d) of the Employment Rights Act 1996, which states that a potentially fair reason for dismissal is that the employee could not continue to work in the role without contravening a duty or restriction imposed by an enactment.  Put another way, a dismissal is potentially fair if it means that continuing to employ someone would be unlawful. 

But Baker appealed to the EAT, which held that:

• He was not subject to immigration control and had the right to work;
• Immigration law does not require employers to conduct right to work checks, it merely gives them a ‘statutory excuse’ from civil penalties if a checked employee turns out to lack right to work status;
• Baker’s ongoing employment would not be illegal just because he could not satisfy document checks;
• The dismissal could not be fair under s98(2)(d);
• The case should be reconsidered because of another reason for the dismissal – this time ‘some other substantial reason’ under s98(1) of the Employment Rights Act 1996.

There is a crucial distinction between an employer’s belief that an individual does not (or may not) have the right to work and that employee not actually having the right to work. This means it is risky for employers to rely on ‘contravention of an enactment’ as their reason for dismissal. Immigration status can be a complicated matter, and it may not be clear whether the employee does, or does not, have the right to work. 

The Baker v Abellio London case also involved a claim for unpaid wages during the period of suspension when Baker was not paid. For technical reasons, this issue was also remitted to a fresh tribunal for rehearing. 

Practical tips for employers

Such is the conflict between employment and immigration law that it is not always possible to take all the risk out of an immigration-related dismissal. But there are steps employers can take to reduce those risks:

• Consider including wording in employment contracts relating to immigration matters. With careful wording you can limit the cost of a right to work dismissal;
• Conduct the prescribed right to work checks for all new employees and make a note of when any follow up checks are due. If employers get the checks right, they should not have to pay a civil penalty, even if it turns out that one of their checked employees did not have the right to work. (Note that, if employers know their employee does not have the right to work, checks will not help and they will have committed a criminal offence);
• Apply the same process to all employees, even those that are believed to be European Economic Area (EEA) nationals. Doing so will help avoid allegations of race discrimination;
• If it is not clear whether documents establish a right to work or not, seek specialist advice;
• If an existing employee cannot produce satisfactory right to work documents, act quickly to reduce exposure to penalties under immigration law. But be sure to follow due process by giving the employee concerned an opportunity to comment, which should reduce the risk of dismissal being perceived as unfair on procedural grounds. Doing so is particularly important if the employee has two years’ continuous service and so is entitled to unfair dismissal rights. Even if they do not, it is good practice to follow due process where possible in order to reduce the risk of race discrimination claims – for which no qualifying service is necessary. It is possible to conduct the process fairly and thoroughly but still speedily in some instances;
• If dismissal is necessary, the reason for it should usually be ‘some other substantial reason’ rather than, or in addition to, ‘contravention of an enactment’. Even if employers genuinely believe that an individual does not have a right to work, the dismissal will be deemed unfair if it is based on ‘contravention of an enactment’ grounds but it later transpires that the employee did have the right to work after all. Each case will be different and so legal advice is recommended.

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.

UK employers have a delicate balancing act between complying with immigration and employment law. 

On the one hand, it is unlawful to employ an adult who is subject to immigration controls if they do not have valid ‘leave to enter’ or ‘leave to remain’ status, or if they have a valid leave to enter or remain in the UK but are not permitted to work. If employees do not have ‘right to work’ status, their employer can face fines and even prison. As a result, given the threat of civil and criminal sanctions, most are careful to avoid employing people who are not eligible for work. 

On the other hand, focusing too heavily on immigration law obligations alone can lead to Employment Tribunal claims. Employment Tribunals can seem unsympathetic to employers facing legal claims that arise from their efforts to prevent illegal working from taking place.

If an employee loses the right to work, or is discovered never to have had that right, employers must act swiftly to avoid penalties under immigration law. But in doing so, they still need to take employment legislation into account and, in particular, the statutory protection employees have in relation to unfair dismissal, race discrimination and unlawful deductions from wages. 

In November 2017, the Employment Appeals Tribunal (EAT) issued a judgment in the Baker v Abellio London case, which serves as a reminder of this predicament:

What happened in the Baker case?

In the Baker case, the employee was a Jamaican national. He was not subject to immigration control and had the right to live and work in the UK. But when Abellio London undertook right to work checks, Baker failed to provide satisfactory documentary evidence of his right to work in the country. Therefore, he was suspended without pay and was ultimately dismissed. 

For a dismissal to be fair, employers must show both a potentially fair reason for making it and that a fair procedure was followed. Baker complained of unfair dismissal to the Employment Tribunal but it did not uphold his claim. 

Abellio London relied on s98(2)(d) of the Employment Rights Act 1996, which states that a potentially fair reason for dismissal is that the employee could not continue to work in the role without contravening a duty or restriction imposed by an enactment.  Put another way, a dismissal is potentially fair if it means that continuing to employ someone would be unlawful. 

But Baker appealed to the EAT, which held that:

• He was not subject to immigration control and had the right to work;
• Immigration law does not require employers to conduct right to work checks, it merely gives them a ‘statutory excuse’ from civil penalties if a checked employee turns out to lack right to work status;
• Baker’s ongoing employment would not be illegal just because he could not satisfy document checks;
• The dismissal could not be fair under s98(2)(d);
• The case should be reconsidered because of another reason for the dismissal – this time ‘some other substantial reason’ under s98(1) of the Employment Rights Act 1996.

There is a crucial distinction between an employer’s belief that an individual does not (or may not) have the right to work and that employee not actually having the right to work. This means it is risky for employers to rely on ‘contravention of an enactment’ as their reason for dismissal. Immigration status can be a complicated matter, and it may not be clear whether the employee does, or does not, have the right to work. 

The Baker v Abellio London case also involved a claim for unpaid wages during the period of suspension when Baker was not paid. For technical reasons, this issue was also remitted to a fresh tribunal for rehearing. 

Practical tips for employers

Such is the conflict between employment and immigration law that it is not always possible to take all the risk out of an immigration-related dismissal. But there are steps employers can take to reduce those risks:

• Consider including wording in employment contracts relating to immigration matters. With careful wording you can limit the cost of a right to work dismissal;
• Conduct the prescribed right to work checks for all new employees and make a note of when any follow up checks are due. If employers get the checks right, they should not have to pay a civil penalty, even if it turns out that one of their checked employees did not have the right to work. (Note that, if employers know their employee does not have the right to work, checks will not help and they will have committed a criminal offence);
• Apply the same process to all employees, even those that are believed to be European Economic Area (EEA) nationals. Doing so will help avoid allegations of race discrimination;
• If it is not clear whether documents establish a right to work or not, seek specialist advice;
• If an existing employee cannot produce satisfactory right to work documents, act quickly to reduce exposure to penalties under immigration law. But be sure to follow due process by giving the employee concerned an opportunity to comment, which should reduce the risk of dismissal being perceived as unfair on procedural grounds. Doing so is particularly important if the employee has two years’ continuous service and so is entitled to unfair dismissal rights. Even if they do not, it is good practice to follow due process where possible in order to reduce the risk of race discrimination claims – for which no qualifying service is necessary. It is possible to conduct the process fairly and thoroughly but still speedily in some instances;
• If dismissal is necessary, the reason for it should usually be ‘some other substantial reason’ rather than, or in addition to, ‘contravention of an enactment’. Even if employers genuinely believe that an individual does not have a right to work, the dismissal will be deemed unfair if it is based on ‘contravention of an enactment’ grounds but it later transpires that the employee did have the right to work after all. Each case will be different and so legal advice is recommended.

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.