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Compensatory Award and Entitlement to Work

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[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Was an employment tribunal right to award unfair dismissal compensation beyond the period an employee was entitled to work in the UK?

No, says the EAT in Kings Castle Church v Okukusie.

The claimant was employed as a pastor. When he began work he applied for permission from the UK Border Agency to live and work in the UK. This was granted until 11 October 2009.

On 19 January 2010 he received a letter from UKBA refusing his refusing an application to remain in the UK indefinitely. On 10 February 2010 he was dismissed. The employment tribunal found that this was unfair on the basis that the church had acted automatically on the information it had, without investigating further. The tribunal awarded compensation to the date of dismissal and future loss for a further six months.

But a material letter dated 18 May 2010, from UKBA, had not been included in the bundle before the tribunal. It said that the claimant's appeal against the original UKBA decision was refused and that there was no right to remain in the UK beyond 10 May 2010.

It was held by the EAT that the tribunal should have enquired into matters more thoroughly. For they should have been alerted to a problem by virtue of the 19 January 2010 letter, and also because the claimant had failed to produce documentation under an order by another employment judge.

As a result the tribunal erred in awarding compensation based on earnings with the church over the period he would not have been permitted to work. The original award of compensation was therefore overturned and substituted by an award of loss of earnings up to 10 May 2010.