XpertHR consultant editor Darren Newman considers the implications of a recent case involving a Jamaican bus driver who was dismissed when he could not provide the required documentation during his employer’s audit of its workforce’s right to work in the UK.
Right to work documentation
The question that emerges at the end of the decision in Baker v Abellio London Ltd is one that feels particularly poignant in light of the unfolding Windrush scandal. Is it reasonable for an employer to trust the assessment of the Home Office and dismiss someone who they are told is not entitled to work in the UK?
The question arose in Mr Baker’s case because he is a Commonwealth citizen who came to the UK as a child. There was no doubt, by the time of the tribunal case, that he was entitled to live and work in the UK, but at the time of his dismissal he did not have documentation that firmly established that.
The Home Office allegedly advised the employer that it therefore needed to dismiss him, but, as the Employment Appeal Tribunal (EAT) pointed out, that was incorrect. There is no requirement for an employer to have proof of an employee’s ability to work in the UK.
Of course, if an employer knowingly employs someone not entitled to work here, that is an offence. An employer can also be subject to a substantial civil penalty – up to £20,000 per worker – for unwittingly employing such a person and it is here that the documentation comes in. The employer has a “statutory excuse” if it can show that it obtained appropriate documentation showing that the employee was entitled to work in the UK.
When the Asylum and Immigration Act 1996 first made employers liable for unwittingly employing people illegally, the list of documents that could be relied on was much wider than it is today. It also included easily obtainable documents – such as a P45 from a previous employer showing the employee’s national insurance number.
Under the current regime, the permissible documents are limited to passports, birth certificates and official documentation, usually issued by the Home Office.
For someone in Mr Baker’s position – not born in the UK and with a Jamaican passport – these documents may not be easy to obtain, and some involve paying a substantial fee. It is not wholly surprising that he was unable to produce a document that met the legal requirements.
However, his failure to produce documentation did not mean that it was illegal to employ him. He was not subject to immigration control and was entitled to work in the UK.
The employer did not therefore need to provide a “statutory excuse” and could have continued to employ him perfectly legally. As a result, its attempt to defend his dismissal on the grounds of a “statutory ban” was rightly dismissed by the EAT. That did not mean, though, that his dismissal was unfair.