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Failure to Evidence Right to Work does not mean employment is a contravention of statute

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Can dismissing an employee who isn't subject to immigration control, but can't provide documentary proof, be fair under s98(2)(d) Employment Rights Act, for contravening a restriction imposed by an enactment?

No, held the EAT in Baker v Abellio London. The Claimant was a Jamaican national not subject to immigration control, known to have the right to live (and to work) in the UK. The employer carried out right to work checks, suspending the Claimant without pay and ultimately dismissing him (fairly in the employment tribunal's view) when he did not provide sufficient documentary evidence of his right to work in the UK. The EAT overturned the finding of a fair dismissal.

The tribunal erred in finding the dismissal fair under s98(2)(d) because the Claimant didn't provide documentation required for a 'right to work' check under s15 Immigration, Asylum and Nationality Act 2006, as he wasn't subject to immigration control under s25 of that Act, the check didn't apply. There is no obligation to carry out the check, it simply provides an excuse from a penalty if employment is illegal. However, dismissing such an employee for a 'substantial reason' under s98(1) could be fair if the employer had a genuine but erroneous belief that employment was illegal. The fairness of a SOSR dismissal was remitted for reconsideration.

A further point arose from the (disputed) withdrawal of a wages claim for the Claimant's unpaid suspension. He had the right to work, so should have been paid. The Claimant had not been legally represented, the wages claim had been dismissed upon withdrawal in circumstances when the withdrawal would be 'obviously ill-considered or irrational' as the wages claim appeared to be 'unanswerable'. The EAT allowed the appeal against the dismissal of the wages claim; this was a 'rare case' where a dismissal upon withdrawal could be overturned. The EAT built on previous authority in Campbell v OCS Group UK Ltd ordering the re-instatement of the withdrawn claim, remitting both claims to a fresh tribunal for re-hearing.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.