Case law: Employer knowing employee had right to work in UK could not dismiss him for failure to produce paperwork

Employers who know or believe an employee has the right to work in the UK, but still carry out a right to work check, should take advice before disciplining or dismissing the employer if they do not produce documents showing a right to work.

An employer knew that a Jamaican employee had the right to live and work in the UK and was not subject to immigration control. The employer's construction of the law was that, even if an employee had the right to live and work in the UK, he still had to produce documents above and beyond a passport. When it therefore carried out 'right to work' checks it asked him to produce such documents. He refused to produce documentation beyond a passport on grounds that his right to live and work in the UK meant the additional documentation was not required, and it would cost him too much to obtain it.

The employer suspended him without pay, then dismissed him.

The Employment Appeal Tribunal (EAT) ruled that his dismissal was unfair - the employer's view of the law had been wrong. As immigration control did not apply to the employee, there was no requirement for the employer to carry out an immigration check on him. It was simply that, if it did, it would not be subject to a penalty if his employment actually turned out to be illegal.

The EAT ruled that it was therefore unfair to dismiss him because he failed to produce documentation over and above his passport. However, it said that it would have been fair to dismiss him if the employer had genuinely (but wrongly) believed that the employee was working illegally. It remitted the case back to the Employment Tribunal to consider this point.

Operative date

  • Now

Recommendation

  • Employers who know or believe an employee has the right to work in the UK but carry out a right to work check anyway, should take advice before disciplining or dismissing them if they are unable to produce relevant documents showing the right to work

Case ref: Baker v Abellio London UKEAT/0250/16/LA

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