Cutting through compliance: is no right to work evidence grounds for illegal employment?

The situation

The Employment Appeal Tribunal has overturned the decision in the Baker v Abellio London Ltd UKEAT/0250/16 case, that Abellio had fairly dismissed Mr Baker on the grounds of failing to produce documentary evidence of his right to work.

Abellio audited its workforce to check right to work documentation. Mr Baker, a Jamaican national, had the right to live and work in the UK due to his right of abode under the Immigration Act 1971, he was unable to produce the documentation requested by his employer to evidence this.

As a result, Mr Baker was suspended by Abellio without pay. Once the opportunity arose for Mr Baker to provide the necessary documentation, he failed to do so and was dismissed by reason of illegality.

Mr Baker then issued claims for both unfair dismissal and unlawful deductions from wages for his unpaid suspension against Abellio.

The challenge

The Baker v Abellio London Ltd appeal centred on a very specific point of law. It was not necessary to have evidence of the employee’s right to work as he was not covered by ‘immigration control’ as he had the right to live and work in the UK being a Jamaican national. Section 15 of The Immigration and Nationality Act 2006 requires employers to have evidence of the right to work to be excused from a penalty. It was therefore not fair to dismiss the employee relying on s98(2)d of The Employment Rights Act which allows for dismissal if continued employment is illegal,  as the employer was not facing a penalty for an illegal contract as no evidence other than a Jamaican passport (which was produced) was needed.

What you need to know

Despite the outcome of the appeal, employers should remain aware of the risk of not insisting on right to work documentary evidence for employees – the simple belief that an employee has the right to work does not constitute a satisfactory defence evidence against any penalties or sanctions should it be revealed later that an employee does not have the right to work. However, if an employee is not subject to immigration control, being provided with and retaining a copy of an endorsed passport is sufficient defence against a claim of employing an illegal worker.

The EAT judge also criticised the employer for not producing written evidence of the exchanges between themselves and the Home Office. The employer relied on relaying the verbal assurances he had been given by the Home Office, but as there was no written correspondence there was no evidence that the Home Office had been given an accurate outline of the employee’s circumstances and this rendered the dismissal process unfair. So, when an employer does need to seek additional advice which it relies on to support a fair dismissal, written proof of this is vital. This was what rendered the dismissal unfair.

Employers are therefore advised to still follow best practice in right to work checks using the Obtain, Check and Retain method:

Obtain the person’s original documents as specified in the Employer’s Guide to Right to Work Checks

Check the validity of the documents in the presence of the holder

Retain a clear copy, and make a record of the date of the check

Useful resources and sources

For the full EAT judgement on the case, visit https://www.gov.uk/employment-appeal-tribunal-decisions/mr-d-baker-v-abellio-london-ltd-ukeat-0250-16-la

For further information on best practice right to work checks, advice on ensuring the legal employment of certain categories of workers including voluntary workers and students and for tips on preventing illegal working, see: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/638349/Employer_s_guide_to_right_to_work_checks_-August_2017.pdf