Fair dismissal for failure to produce evidence of right to work in UK

The claimant moved from Jamaica as a child, giving him the "right of abode" (right to live indefinitely) in the UK. Photo: imageBROKER/REX/Shutterstock.
The claimant moved from Jamaica as a child, giving him the "right of abode" (right to live indefinitely) in the UK. Photo: imageBROKER/REX/Shutterstock.

An employment tribunal held that an employee was fairly dismissed after failing to produce evidence of his right to work in the UK when his employer ran checks on its workforce’s immigration status. Stephen Simpson rounds up recent tribunal decisions.

Dismissal of employee with no evidence of right to work in UK was fair
In Baker v Abellio London Ltd, the tribunal held that the employer fairly dismissed an employee who failed to produce evidence of his right to work in the UK.

Dismissal over evidence of right to work: tribunal’s view

“As the claimant is not British, but Jamaican, his passport is not…sufficient evidence that he can work, nor is his birth certificate. It is not in dispute that he has the right of abode…but he has to provide evidence…in the form of an endorsement in his passport…”

If…the employer does not obtain that evidence…it could be fined up to £20,000 and/or face criminal liability. There are no allowances made…for someone who is lawfully in the UK.”

During checks on immigration status, a bus company asked Mr Baker to provide evidence of his right to work in the UK.

Mr Baker, who was born in Jamaica but has lived in the UK since childhood, has the right of abode (the right to live indefinitely) in the UK. However, his Jamaican passport had expired and he had no other evidence of his right to work in the UK.

The employer lent £350 to Mr Baker to cover the cost of obtaining a valid Jamaican passport and an endorsement in the passport confirming his right to work in the UK.

The claimant applied for a passport, but not the endorsement. The employer received advice from the Home Office that the passport alone, without an endorsement, was not sufficient evidence of the right to work.

The employer wrote to the claimant asking him to obtain the endorsement as evidence of his indefinite leave to remain in the UK.

However, Mr Baker did not provide the evidence and did not attend a meeting arranged by the employer to discuss the situation, including the risk of dismissal.

The employer dismissed Mr Baker for not providing proof of his right to work in the UK. Mr Baker’s appeal against dismissal was rejected.

Mr Baker claimed unfair dismissal in the employment tribunal.

While the tribunal expressed its sympathy for Mr Baker, it concluded that the employer was correct to require evidence of his immigration status.

Without that evidence, the employer was left with no option but to dismiss Mr Baker, despite his legal right to be in the UK.

In finding the dismissal to be fair, the tribunal accepted that the employer had followed a satisfactory procedure. The employer had:

  • investigated Mr Baker’s immigration status;
  • explained verbally and in writing to him what evidence he had to produce;
  • warned him of the risk of dismissal;
  • provided him with a loan to cover the costs;
  • given him opportunities to obtain proof; and
  • allowed him to appeal against his dismissal.

Read more details of the case and practical tips in the light of the judgment…

 

Other tribunal decisions in the headlines

Disabled teacher sacked over Halloween film awarded £180,000
A disabled teacher who was sacked for gross misconduct after showing the 18-rated film Halloween to 16-year-old students has won at least £180,000, reports the Yorkshire Post.

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