How does an employer deal with the situation where a worker originally had the right to work in the UK for a limited period, but now it seems to the employer they no longer have that right? Is an employer entitled to dismiss the worker? Would it be a fair dismissal?
Under section 98(2)(d) of the Employment Rights Act 1996 it can be a fair reason for dismissal if the ‘employee cannot continue to work in the position they held without contravention (either on the part of the employee or the employer) of a legal duty or restriction’.
An employer is breaking the law if they employ a person who does not have the right to work in the UK. They can be fined up to £10,000 for each illegal worker or face criminal prosecution. The only defense against a charge of employing an illegal worker is the employer’s ability to show they have carried out all the necessary documentary checks to confirm if a person has the right to work in the UK.
The Borders Agency has published its ‘Full Guide for Employers on Preventing Illegal Working in the UK‘, May 2012. It is a must have guide for all employers, not only to fully understanding their legal obligations but also how to go about the necessary documentary checks and how to recognise the correct documents.
Where a potential employee is unable to provide a document showing they have a permanent right to work in the UK, only a document showing a temporary right to work here, the employer has a problem. In this case, in order for the employer to know they are not employing the employee illegally, they must carry out repeat document checks at least once every 12 months. If, when an employer carries out a check, the individual’s documentation shows that their right to work in the UK expires within 12 months, then an employer is recommended to carry out a repeat check at point of expiry.
Once an employee is able to provide documentation that shows they have a permanent right to live and work in the UK, no further checking is required.
If the employee fails to co-operate by producing any documents for repeat checking,the employer lays themselves open to a charge of employing an employee illegally if they continue to employ that individual.
But what if, at the time of a repeat check, the individual maintains that their right to remain in the UK is currently under appeal? What should the employer do? The Borders Agency recommend the employer contact the Employer Checking Service. The Service will confirm if the individual has, or continues to have, the right to work in the UK. The Service will provide written notification of the outcome. The above Guide details how to go about requesting information on an individual’s right to work in the UK.
Therefore, surely, if the employee has failed to co-operate in providing documentation for a repeat check, or the Employer Checking Service has confirmed the individual does not have a right to continue to work in the UK, the employer is within their right to dismiss the employee?
In principle yes, but even though it is illegal to employ someone who no longer has a right to work in the UK, the above Guide states: “If you are considering the potential dismissal of an employee, you may wish to seek independent legal advice.”
The need for an employer to be careful in dismissing such an employee was illustrated in the EAT judgement in Kings Castle Church v Okukusie  UKEAT 0472/11. In this case, Mr Okukusie was dismissed when his continued right to be in the UK expired. The Employment Tribunal found that Okukusie had been unfairly dismissed for two reasons.
Firstly, the employer had ‘jumped the gun’ and dismissed the employee whilst his leave to remain in the UK was still under appeal, and that appeal had not been exhausted. This would indicate that the employer had not obtained a written notification from the Employer Checking Service as to Okukusie’s status. Any ‘reasonable’ employer would have made absolutely sure of their grounds before dismissing the employee.
Secondly, the Employment Tribunal came to the conclusion that that “no reasonable employer would have failed to give the claimant a clear warning that without this presentation of his immigration documents, he would be dismissed.”
So yes, although not having a continued right to work in the UK may be a fair reason for dismissal, the employer should first have included in terms and conditions that the employee’s continued employment is only based on their continuing to provide documentary evidence of their right to work in the UK. Also, the Employer Checking Service is the best source of information if an employer is unsure in any way about an individual’s continuing right to work in the UK.