Legal case highlights importance of right-to-work documents

7 Dec 16

UNITED KINGDOM

IMPACT – MEDIUM

What is the change? An employment tribunal has found that a company was justified in terminating an employee who had a legal right to abode (to live and work) in the U.K. in fact, but failed to provide specific documentary evidence in line with the right-to-work guidance when requested by the employer.

What does the change mean? The case helps define the steps an employer should take to verify an employee’s right to work under immigration laws and the point at which an employer may terminate an employee without running afoul of employment laws. It also reminds foreign national employees of the need to have specific documentation evidencing their right to work.

Background: The case, Baker v. Abellio London Ltd., involved a bus driver who held a Jamaican passport and a right of abode and was thus entitled to live in the U.K. and freely work for any employer in the U.K. However, during right-to-work immigration checks, the employer found that the employee’s passport containing the right-of-abode endorsement authorizing work had expired. The employee renewed his passport, but did not obtain a new right-of-abode endorsement as requested.  As such, the employer was able to terminate employment for failure to evidence the employee’s right to work in line with the specific guidance, despite there being no doubt in fact that he had the right to work in the U.K.

An employment tribunal found that the dismissal was fair because the employer had taken the following steps:

  • Conducted right-to-work checks.
  • Explained the evidence he was required to produce.
  • Loaned the employee money and gave him an opportunity to obtain proof.
  • Warned him that he would be dismissed if he failed to obtain proof.
  • Allowed him to appeal his dismissal.

BAL Analysis: While the decision is by a first-tier tribunal that is likely to be appealed, it provides some important guidelines and reminders to human resource professionals who are required to balance employment law protections for employees against company obligations under the immigration rules on right-to-work checks. The decision demonstrates that greater support is likely to be shown to employers – who face a £20,000 fine for employing an illegal worker unless they establish a statutory excuse by adhering to the prescribed right-to-work check procedures – and that a dismissal for failing to provide documentation can in some circumstances be proportionate and fair.

This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@balglobal.com.

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