Policy clinic: immigration-related dismissals

On 29 February 2008, harsher penalties came into force for employing workers who do not have immigration permission to work. Knowingly employing an illegal worker became a criminal offence carrying unlimited fines and prison sentences of up to two years for individual directors and managers. Employing an illegal worker is also a civil offence, which carries a fine of up to £10,000 per worker

These are not empty threats. £500,000 of fines were issued within the first two months of the new regime, and the number of prosecutions in that short period more than doubled the total for the previous decade. Some employers are being caught out as a result of the changing work permit arrangements.

Going forward, employers who wish to sponsor certain migrant workers must first register as a sponsor, which involves a visit from a UK Border Agency officer. If breaches of immigration laws are discovered, the officer may issue a civil penalty or refer the matter for prosecution.

Document checks

The Home Office sets out a document checking process for employers which specifies certain documents that the employer should see, check and retain a copy of, for every employee. Full details can be found at www.bia.homeoffice.gov.uk. These document checks are not compulsory but are strongly recommended. If the right checks have been made in good faith, but it is then found that the person is an illegal worker, the employer will have a “statutory excuse” from civil liability.

Employers should carry out the document checks before the person starts work and repeat them every 12 months if the right to work has a time limit. If the person refuses, or cannot produce any of the acceptable documents on the Home Office lists, produces documents that appear not to relate to the individual producing them, or which do not appear to be authentic, and a non-discriminatory process has been followed, the prospective employer can lawfully refuse to take the person on.

Race discrimination

There is inherent tension between immigration law and race discrimination law. A particular area of concern is race discrimination. Provided that the initial document checking procedures are applied to all employees in exactly the same way, and at the same stage in the recruitment process, without exception, then the process will not be discriminatory. If there is cause to refuse to employ a person, employers should note down the reasons, together with a copy of any document produced. This will assist in defending allegations of a discriminatory recruitment process.

What about existing employees?

With the renewed focus on checking employees’ immigration status, employers may discover that an existing employee has slipped through the net, and does not appear to be entitled to work in the UK. Given the potentially severe penalties, employers may be tempted to dismiss immediately.

While this would reduce vulnerability to immigration penalties, it exposes the employer to wrongful and unfair dismissal claims.

Illegality is a potentially fair reason for dismissal, so a dismissal based on the employee being an illegal worker is potentially fair. The statutory dismissals procedures do not apply to dismissals where continued employment would breach a statutory restriction. However, illegality dismissals are not “automatically fair”. The employer still needs to act reasonably in treating that reason as sufficient to justify dismissal.

It can be very difficult to determine with certainty whether or not an employee has the right to work in the UK. There have been cases where the Home Office has confirmed that an employee does not have the right to work in the UK, the employer has dismissed, and the employee has subsequently established that in fact he did have the right to work in the UK.

Even where the passport which the employee produces is almost certainly a fake, this is not conclusive evidence of illegal working. If you mistakenly, but genuinely, believe the person is not entitled to work, the dismissal will be unfair if you rely on ‘illegality’ as the reason.

Alternative grounds

Employers in this situation can protect themselves by putting in place additional alternative grounds for dismissal. An alternative potentially fair reason is ‘some other substantial reason’, perhaps a reasonable suspicion that the worker is not entitled to work in the UK. Misconduct, may also be a potentially fair reason if the person has dishonestly supplied a false document as evidence of the right to work. The statutory dismissals procedure will apply to these alternative routes.

Employers can include provisions in employment documents to protect themselves from contractual liability. For example, offer letters and contracts can ensure that both the commencement and continuation of employment is conditional upon the employer being satisfied of the employee’s right to work.

Employers contemplating dismissal for immigration reasons should seek specialist legal advice tailored to the individual facts of the case.

A checklist of the information to gather is shown in the box. It may be that a quick call will lead to reassurance that you need not worry – perhaps the person has less than a year’s service and therefore does not qualify for the right not to be unfairly dismissed, or has been employed continuously from a date before 27 January 1997, so the employer will not be committing an offence.

It is important that employers act immediately on discovering that the person may not have the right to work, to avoid committing the criminal offence of knowingly employing an illegal immigrant from the moment of discovery. Those who undertake the document checks need to be made aware of this.

Anne-Marie Balfour is a solicitor at Speechly Bircham

Key points

  • Employing a person without the right to work can result in unlimited fines and prison sentences for the employer.
  • Employers can protect themselves from liability if they make the Home Office’s prescribed document checks before prospective employees start work.
  • Document checks should be made for all employees, without exception, to avoid a discriminatory effect.
  • If the person cannot produce the documents, do not let him or her start work.
  • If you suspect an existing employee is working illegally, seek specialist legal advice on how to proceed immediately.
  • If you delay once you know about the problem, you may commit a criminal offence.
  • If you dismiss the person without an appropriate procedure, that dismissal may be unfair.
  • It is very difficult to be certain that a worker is not entitled to work in the UK. If illegality is the reason you wish to dismiss, try to put in place an alternative potentially fair reason (with the appropriate process) such as ‘some other substantial reason’.
  • Including provisions in contracts of employment and offer letters addressing the right to work can reduce the risks for employers.

Policy guidelines

Your policy should ensure the following points are addressed:

  • Date employment commenced.
  • Has employment been continuous since that date?
  • The employee’s age.
  • Was the employee acquired under the TUPE regulations?
  • The reasons for suspecting the person may not have the right to work.
  • How the suspicions came to light.
  • Details of any explanation offered by the employee.
  • Copies of any immigration documents furnished.
  • Any inconsistencies between information on immigration documents produced and other documents on the personnel file, eg cv, application form, certificates.
  • The employee’s contractual terms.
  • Details of past – if any – immigration-related dismissals.

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