Weekly dilemma: Suspected illegal workers

We are currently updating our personnel records and have asked all employees to provide current proof of eligibility to work in the UK. One of our employees, an Indian national who has been with us for nearly two years, is refusing to provide the documentation.

While we have a copy of her passport which shows leave to remain when she first joined us, we have reason to suspect that she does not currently have the right to work in the UK. Can we dismiss her?

Employing staff who do not have the right to legally work in the UK breaches sections 15 and 21 of the Immigration, Asylum and Nationality Act 2006. If convicted, both the employer and/or the individual employee with responsibility for compliance could be fined and/or given a custodial sentence.

Employees that have accumulated one year’s continuous service are protected by the Employment Rights Act 1996 and, to be lawful, any dismissal must be for one of the six potentially fair reasons under section 98. A fair procedure must also be followed. The potentially fair reasons for dismissal are:

  • capability

  • conduct

  • retirement

  • redundancy

  • illegality

  • some other substantial reason.

An employer can dismiss an employee who is working illegally on the ground that the employment breaches a statutory restriction, but statutory dismissal procedures do not apply to such a dismissal. However, employers can only rely on this ground where there has been an actual breach of immigration legislation. It will be difficult for employers to be 100% certain of the immigration position.

An employer may lawfully dismiss for “some other substantial reason” on the basis that the employer genuinely and reasonably believes that the employee is, or would be, working illegally. The mere fact that this belief may turn out to be incorrect will not make the decision unfair as long as the belief is genuine.

However, an employer relying on this alternative ground must follow a fair procedure before dismissing the employee, which includes complying with the statutory dismissal procedure (and conducting a reasonable amount of investigation). Failure to do so will make the dismissal automatically unfair.

If an employer is conducting an investigation to determine whether an individual is working illegally, the employee should be suspended and not permitted to continue actively working during the investigation.

To avoid a breach of contract/wrongful dismissal claim when dismissing for some other substantial reason, an employee should be granted the minimum notice period under their contract. This should be paid in lieu, irrespective of any contractual entitlement to do so, and they should not be expected or allowed to work.

By Helen Brooks, solicitor, Magrath

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