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Dismissal for illegality

The law

An employer could be subject to a civil penalty of up to £20,000 for failing to carry out the correct process for checking individuals’ right to work in the UK and employing illegal workers as a result. In addition, it is also a criminal offence to employ someone who you know or have reasonable cause to believe is an illegal worker. If found guilty of this offence an employer can be liable for an unlimited fine and up to 5 years’ in prison.

Background

The Claimant was employed by Abellio London Ltd (“Abellio”). He was a Jamaican national with the right to live and work in the UK and did not require leave to remain.

During an audit check, the Claimant was asked to provide documentation to evidence his right to work in the UK. Although Abellio did not dispute that the Claimant was entitled to work in the UK (as this had been confirmed by the Home Office), the Claimant failed to provide sufficient evidence to demonstrate his right to work.

Due to the failure to provide the evidence, the Claimant was dismissed for reason of illegality which is a potentially fair reason under section 98 (2) (d) of the Employment Rights Act 1996.

The Claimant brought a claim for unfair dismissal.

Decision

The Employment Tribunal found the dismissal for illegality to be fair but this was overturned on appeal.

The Employment Appeal Tribunal (“EAT”) found that as the Claimant had the right to work in the UK, Abellio would not have committed an offence if it had continued to employ him and so illegality could not be the reason for dismissal.

However, the EAT upheld the tribunal’s decision that in the alternative, the employer could rely on its genuine yet mistaken belief that it would commit an offence if it continued to employ the Claimant without having sufficient evidence to prove his right to work in the UK. This could amount to ‘some other substantial reason’ (“SOSR”) for dismissal, also a potentially fair reason under the Employment Rights Act 1996.

Comment

This case highlights that if an employer relies on statutory illegality as the fair reason for dismissal, it would need to show that continued employment of the employee would actually contravene a statutory restriction, it is not sufficient for an employer to have reasonable belief that such restriction applied.

In circumstances when there is no actual evidence either way that an employee does or does not have a right to work in the UK it is important for employers to rely on SOSR to justify dismissal rather than statutory illegality.

Each case will be assessed on its own facts and to rely on SOSR as a fair reason for dismissal an employer would have to demonstrate that it genuinely and reasonably believed at the time of the dismissal that an employee did not have the right to work in the UK.

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