Employment Law Cases

Baker v Abellio London Ltd

An employer could not claim ‘illegality’ as a fair reason to dismiss an employee when the employee failed to provide right-to work documentation.

The law

The Employment Rights Act (s. 98) provides five potentially fair reasons for dismissal: conduct, capability/qualifications, redundancy, some other substantial reason (SOSR) and, relevant for the purposes of this case, breach of a statutory restriction (often termed ‘illegality’).

The Immigration, Asylum and Nationality Act 2006 (s. 15) makes it unlawful for an employer to employ an adult who is subject to immigration control and one of the following applies:

• they do not have valid leave to enter or remain in the UK
• they have valid leave but are not permitted to work

Breach of s. 15 renders the employer liable to a civil penalty (up to £20,000), but s.15(3) provides a statutory excuse from the penalty if the employer can show that it undertook certain documentary checks.

Background

Mr Baker, who was born in Jamaica but had lived in the UK since he was a child, worked as a bus driver. He has the right of abode (the right to live indefinitely) in the UK. He had not been required to produce evidence of his right to work lawfully in the UK when he started work.

Two years after he started work, his employer conducted immigration status checks for the workforce. It asked Mr Baker to provide evidence of his right to work in the UK. However, his Jamaican passport had expired and he had no other evidence of his right to work in the UK. Because he couldn’t provide any documentation, he was suspended and then dismissed. At the subsequent tribunal hearing, his employer said they’d dismissed him for illegality. While sympathetic to Mr Baker, the tribunal nevertheless held that his employer had been correct to require evidence of his immigration status and that without such evidence, it was left with no option but to dismiss him, despite his legal right to be in the UK. His dismissal was fair for illegality. Alternatively, held the tribunal, Mr Baker had been fairly dismissed for SOSR. Mr Baker appealed.

EAT decision

The EAT allowed Mr Baker’s appeal. He wasn’t subject to immigration control under the 2006 Act therefore s. 15 of the Act didn’t apply to him. All s. 15(3) does, said the EAT, is excuse the employer from paying a civil penalty for unlawfully employing a person subject to immigration control, if the employer has obtained certain documents. It does not impose a requirement on an employer to obtain those documents. It followed that Mr Baker’s employer had been wrong to believe that it was illegal to continue employing him.

However, the EAT said that Mr Baker’s dismissal for SOSR could be fair – but only if his employer had a genuine but erroneous belief that the employment was illegal. As the EAT didn’t have enough material regarding this to make a determination, it sent the case back to a different tribunal to decide the issue.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2017/0250_16_0510.html

Comment

Where does this leave employers? Some HR take outs from this decision are:

• You may believe that an employee has the right to work -and the Home Office may have confirmed this when you asked them- but this will be no defence against a penalty under s. 15(3) if the information later proves to be incorrect. The only way to guard against (criminal) liability is to do a full right-to-work check.
• Weigh up the risk of not obtaining a statutory excuse under s. 15(3) against the risks of dismissing the employee. Criminal liability should be a greater concern than the risk of a tribunal claim.
• If you decide to dismiss, plead SOSR - not illegality.
• Lastly, do your right-to-work checks before someone starts work, not two years after as the employer did in this case.