Where an employee has a right to work in the UK as a spouse of an European Economic Area national resident in the UK, can an employer reasonably require them to produce evidence of their right to work in the form of positive ECS (Employer Checking Services) checks from the Home Office?
No, held the EAT in Badara v Pulse Healthcare Limited.
The tribunal had failed to take account of Home Office guidance (and case law) which said that an ECS check was not enough to determine eligibility to work. Given the act of dismissal was prima facie indirectly discriminatory, the tribunal's decision that the dismissal was justified could not stand and the case was remitted to the tribunal.
Thanks to Tim Kenward of 7 Harrington Street Chambers for preparing this case summary.
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