The terms of the Immigration Act 2016 require that every employee’s right to work in the UK must be checked before employment commences and repeat checks undertaken where the right to work is time limited. It is only by carrying out these checks that employers can establish the defence known as the “statutory excuse” if they are later found to have employed an adult who does not have the right to work in the UK, and thus avoid the fine of up to £20,000 for each illegal worker.
The Windrush immigration scandal was predated by the case of Baker v Abellio London Ltd, heard in November 2017 by the Employment Appeals Tribunal (EAT). Mr Baker’s experience is an example of the situation that many of the Windrush generation have found themselves in and highlights the challenges for employers to deal with the situation fairly and legally. Unfortunately, the findings of the EAT have caused further confusion for employers as it found that an employer could not claim ‘illegality’ as a fair reason to dismiss an employee if they failed to provide right-to-work documentation.
Mr Baker, who was born in Jamaica but had lived in the UK since he was a child, worked as a bus driver. He has the right of abode (the right to live indefinitely) in the UK. He had not been required to produce evidence of his right to work lawfully in the UK when he started work and was not asked by his employer to do so until two years after he started work. It asked Mr Baker to provide evidence of his right to work in the UK. However, his Jamaican passport had expired and he had no other evidence of his right to work in the UK. Because he could not provide any documentation, he was suspended and then dismissed. At the subsequent tribunal hearing, his employer said they had dismissed him for illegality. While sympathetic to Mr Baker, the tribunal nevertheless held that his employer had been correct to require evidence of his immigration status and that without such evidence, it was left with no option but to dismiss him, despite his legal right to be in the UK. His dismissal was fair for illegality. Alternatively, the Tribunal held, Mr Baker had been fairly dismissed for Some Other Substantial Reason (SOSR). Mr Baker appealed.
The EAT allowed Mr Baker’s appeal. He was not subject to immigration control under the 2006 Act and so s. 15 of the Act did not apply to him. All s. 15(3) does, said the EAT, is excuse the employer from paying a civil penalty for unlawfully employing a person subject to immigration control if the employer has obtained certain documents. It does not impose a requirement on an employer to obtain those documents. It followed that Mr Baker’s employer had been wrong to believe that it was illegal to continue employing him.
However, the EAT said that Mr Baker’s dismissal for SOSR could be fair – but only if his employer had a genuine but erroneous belief that the employment was illegal. As the EAT did not have enough material regarding this to make a determination, it sent the case back to a different tribunal to decide the issue.
Points for you to consider:
- You may believe that an employee has the right to work - and the Home Office may have confirmed this when you asked them - but this will be no defence against a civil penalty if the information later proves to be incorrect. The only way to guard against (criminal) liability is to do a full right-to-work check. If you do ask the Home Office and/or UKVI, keeping records of any questions asked or advice or responses given would be good practice.
- Weigh up the risk of not obtaining a statutory excuse under s. 15(3) against the risks of dismissing the employee. Criminal liability should be a greater concern than the risk of a tribunal claim.
- If you decide to dismiss, use SOSR as the grounds for dismissal - not illegality – and ensure that a fair process is followed.
- Lastly, do your right-to-work checks before someone starts work, not two years after as the employer did in this case.