Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Employment lawCase lawDismissalMigrant workersRecruitment & retention

Dismissal over mistaken belief about immigration status: Klusova v London Borough of Hounslow

by Personnel Today 11 Dec 2007
by Personnel Today 11 Dec 2007

Klusova v London Borough of Hounslow

An employer’s genuine, but mistaken, belief that continuing to employ a foreign national would breach immigration legislation was capable of amounting to “some other substantial reason” for the purpose of defending an unfair dismissal claim.

Facts Ms Klusova is a Russian national who was granted leave to remain in the UK until May 2004. She had been employed by Hounslow Council since November 2000. In August 2005, the council dismissed her, believing that her continued employment contravened immigration legislation. It did not follow any dismissal procedures, and later argued that these did not apply because the dismissal was for breach of a statutory restriction.

However, at the time of her dismissal, Klusova had in fact been entitled to work in the UK. She had applied to the Home Office for further leave to remain, and was entitled to work pending that application. The confusion arose because in March 2005, Klusova had been detained by the police for immigration offences, and was released conditionally on her not taking up employment. Hounslow received a copy of the form that set out this condition.

Klusova brought an unfair dismissal claim. The tribunal found that her dismissal was automatically unfair, as there had been no restriction on Hounslow employing her, and the dismissal procedures had not been followed. Hounslow appealed and the Employment Appeal Tribunal overturned the decision. Klusova appealed to the Court of Appeal.

Decision The Court of Appeal was satisfied that Klusova had made a valid application for leave to remain before her visa expired, and that she could work until that application had been determined. Conditions imposed by an immigration officer following her detention could not cancel her entitlement to work while her application was being considered.

However, the court accepted that the council genuinely believed Klusova’s continued employment would breach a legal restriction. The fact that it had failed to consult her about its concerns and had not followed relevant guidance did not alter that outcome. The council had made enquiries with the Home Office and received information that suggested it could not continue to employ her.

This genuine but mistaken belief amounted to a potentially fair reason for dismissal (“some other substantial reason”), but in this case, the dismissal was unfair because the council had not followed dismissal procedures.

Key implications An employer can dismiss an employee who is working illegally on the ground that the employment breaches a statutory restriction. The statutory dismissal procedures do not apply to such a dismissal. However, employers can only rely on this ground for dismissal where there has been an actual breach of immigration legislation.

In many cases, it will be difficult for the employer to be 100% certain of the immigration position. In this case, the employer had received official notification that the employee could not work in the UK, but that turned out to be incorrect.

The alternative, and safer, option is to dismiss for “some other substantial reason”, on the basis that the employer believes the employee is working illegally. The mere fact this belief turns out to be incorrect will not make the dismissal unfair, as long as the belief is genuine. However, an employer relying on this alternative ground for dismissal must follow a fair procedure before dismissing, which includes complying with the statutory dismissal procedures. A failure to do so will make the dismissal automatically unfair.

Annabel Mackay, associate, Addleshaw Goddard

Avatar
Personnel Today

previous post
Christmas book competition: win 12 books for Christmas
next post
South West Trains dismisses reports of anger over centralisation plan for human resources team

You may also like

Employers lack data to make IR35 worker status...

25 May 2022

Maternity leave: Cost of living crisis highlights need...

25 May 2022

Employees resigning in 2022: Survey shows ‘great resignation’...

24 May 2022

NHS should upskill admin staff to reduce waiting...

23 May 2022

City firms pledge to improve social mobility in...

20 May 2022

Steep rise in visas for non-EU migrant workers

19 May 2022

One in five employers planning ‘no jab no...

19 May 2022

BNP Paribas banker accused of ’emotional terrorism’ wins...

19 May 2022

Nurses leaving due to pressure and workplace culture

18 May 2022

Number of working people with disability up 1.3...

17 May 2022
  • The Search for Talent: Six Major Employer Pitfalls PROMOTED | The Great Resignation continues unabated...Read more
  • Navigating the widening “Skills Confidence Gap” in 2022, and beyond PROMOTED | Cornerstone OnDemand conducted a global study...Read more
  • Apprenticeships are the solution to your recruitment problems PROMOTED | Apprenticeships have the pulling power...Read more
  • What it really means to be mentally fit PROMOTED | What is mental fitness...Read more
  • How music can help to ease anxiety at work PROMOTED | A lot has happened since March 2020, hasn’t it?...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2022

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2022 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+