The fairness of a dismissal depends on what the decision maker knew at the time of dismissal.
In the case of Baker v Abellio London Ltd, the EAT considered whether an employer could rely on illegality as the potentially fair reason for dismissal in a case concerning right to work documentation.
1. An employer cannot legally employ someone who does not have the right to live and work in the UK. Employers are required to conduct ‘right to work’ checks to prevent illegal working.
2. If an employer discovers, by conducting a right to work check, that an employee does not have the right to live and work in the UK then the illegality of the employee’s continued employment may amount to a fair reason for dismissal.
3. However, as this case shows, if an employee does have the right to live and work in the UK then a failure to provide relevant supporting documents will not necessarily give an employer a fair reason to dismiss. If an employee has the right to live and work in the UK then it is not ‘illegal’ to continue to employ them.
4. This case highlights the importance for employers to have written right to work policies and procedures in their organisations so that HR is clear on what steps to take if an employee does not produce acceptable right to work documentation. This is particularly the case in the current landscape of increased enforcement action by the Home Office and the uncertainty as to how right to work checks will apply to European nationals post-Brexit.
Mr Baker was employed by Abellio as a bus driver. He is a Jamaican national who has the right to live and work in the UK. Abellio conducted an audit to check its employees’ documentation evidencing their right to work in the UK. However, Mr Baker was unable to produce the required documentation and he was suspended, without pay, in February 2015.
Abellio gave Mr Baker the opportunity to acquire the necessary documentation but dismissed him in July 2015, when he had failed to do so. Abellio based its dismissal on the fact that it could not complete its right to work checks and its view that this made it illegal to continue to employ Mr Baker.
Mr Baker issued proceedings for unfair dismissal. The tribunal initially found in favour of the employer, holding that Abellio had established illegality as the reason for dismissal and that the dismissal for that reason was fair.
However, Mr Baker appealed to the EAT and he was successful. Because Mr Baker had the right to work legally in the UK and he was not subject to immigration control there was no requirement under immigration law for Abellio to obtain Mr Baker’s ‘right to work’ documents.
Also, the EAT found that Abellio had wrongly believed that it was illegal to continue to employ Mr Baker. Employers must always be careful to correctly identify a fair reason for dismissal. In this case, Abellio was wrong to rely on ‘illegality’ because Mr Baker did have the legal right to work in the UK.
Had we been advising Abellio, we might have looked closer at his conduct in failing to provide the required documentation and suggested disciplinary action against him for failing to comply with a reasonable management instruction to produce his right to work documentation in time.
Further, clearly drafted right to work policies and procedures could have provided Abellio a contractual basis for dismissal.
Employers must not be tempted to think that this case means they can be more relaxed about asking for right to work documentation from their staff. That would be a mistake. Even if the employer believes that an individual has the right to work and this has been confirmed by the Home Office, this will be no defence against a civil penalty or criminal sanction if the information from the Home Office later proves to be wrong. The only way to protect against the liability is to have conducted a full right to work check.