Unfair Dismissal: Dismissal for ‘illegality’ reasons
In the recent case of Baker v Abellio London, the Employment Appeal Tribunal considered if it was fair to dismiss an employee for failure to produce documentary evidence of his right to work in the UK, where that employee was not subject to immigration control.
To fairly dismiss an employee, an employer first must have a fair reason and secondly, they must follow a fair procedure. There are five potentially fair reasons for dismissal.
These reasons are set out in section 98(2) (b) of the Employment Rights Act 1996 (the “Act”) and are conduct, capability, redundancy, illegality and “some other substantial reason”.
Under section 98(2)(d), it is potentially a fair reason to dismiss an employee if the reason is that the employee could not continue to work in the position which he held without contravention of a statutory duty or restriction.
This case concerned the restrictions on employment contained in the Immigration, Asylum and Nationality Act 2006 (IANA). Section 15 of that Act says that it is unlawful to employ someone subject to immigration control if they have either not been granted leave to enter or remain in the UK or that leave to enter/remain is invalid or has ended. Any employer found in breach of section 15 will be fined unless the employer can show they carried out the necessary documentary checks.
Mr Baker was employed as a bus driver for Abellio London Ltd (Abellio) from 23 July 2012 until his dismissal on 3 July 2015. He was a Jamaican national but had lived in the UK since he was a child and had the right to live and work in the UK. In 2015, his employer carried out an audit of its workforce to find out if any employees were working without the correct documentation. Mr Baker failed to produce a passport and was told he had to stay at home, without pay, until he provided one. Mr Baker applied for and obtained a passport but Abellio then told him visa documents would be required as well. Mr Baker did not accept this and stated that he had the right to live and work in the UK and was a UK citizen.
Abellio sought advice from the Home Office who said a passport was not sufficient evidence of Mr Baker’s right to live and work in the UK. Mr Baker disputed this and was eventually dismissed by Abellio on the basis that he was not entitled to work in the UK and therefore his employment was terminated by reason of illegality.
Mr Baker brought claims for unlawful deduction from wages in relation to his period of unpaid suspension and unfair dismissal. His wages claim was withdrawn at the Tribunal and he also lost his claim for unfair dismissal because the Tribunal found that the reason for his dismissal was illegality (i.e. a fair reason) and that his employer had followed a fair process. Mr Baker appealed.
The Employment Appeal Tribunal (EAT) dismissed the Metropolitan Police Force’s appeal. It found that the CFLIS decision could not be relied upon to escape liability through operating a system of deliberately “opaque” decision making which masks the identity of the true discriminator. The EAT also confirmed that where a claimant is unable for good reason to identify which individual is responsible internally for an act of discrimination, the claimant may (as in this case) be allowed to amend his claim during the hearing in order to add additional or alternative discriminators once the correct persons are identified from witness evidence.
It is still the reasoning of the decision maker that remains central as laid out in the CFLIS decision. However, this case demonstrates that employers cannot use the CFLIS decision to avoid liability where the decision making is deliberately non transparent and where, as a result, the claimant has not identified the correct person as being the discriminator.
The EAT found that section 15 of the IANA did not apply to Mr Baker’s employment because he was not “subject to immigration control”, a fact that had been overlooked by the Tribunal. As a result, the Tribunal had wrongly concluded that Mr Baker would have been working illegally if he had continued to be employed by Abellio. However, the EAT stated that a genuine but mistaken belief that continued employment of an employee would contravene a statutory restriction could amount to “some other substantial reason” for dismissal.
The EAT set aside the decision that the dismissal was fair and remitted the case to the Employment Tribunal to decide on the fairness of the decision to dismiss based on a mistaken belief. The EAT also, unusually, reinstated Mr Baker’s claim for unlawful deduction of wages in relation to his period of unpaid suspension on the basis that its withdrawal was “ill-considered or irrational”.
Points to Note
You may have some sympathy for the employer in this case, after all they believed they were complying with the advice of the Home Office. However, the EAT was critical of the absence of any letters or emails confirming what advice was sought and obtained. This is likely to be relevant to the question, to be determined by a new Tribunal, of whether Abellio acted fairly in dismissing Mr Baker because of their mistaken belief in his immigration status.
Action to Take
1. This is a case that very much turned on its facts – Mr Baker was not subject to immigration control, so his employer did not need to obtain further proof of his right to work. As an employer you must carry out right to work checks before recruiting staff or risk hefty financial penalties.
2. Make it clear in writing when making an offer of employment that it is conditional on the presentation of the correct ‘right to work’ documents.
3. As well as checking the ‘right to work’ documents of all job applicants, carry out checks of all staff during employment and make sure you record and monitor visa expiry dates.
4. Keep records of the ‘right to work’ documents produced, so that you will potentially have a “statutory excuse” if a worker’s entitlement to work is challenged.
5. Useful guidance for employers can be found on the Home Office website here: https://www.gov.uk/check-job-applicant-right-to-work