Will an employer’s genuine and reasonable belief that an employee is no longer permitted to work in the UK be sufficient to justify a dismissal under the ‘some other substantial reason’ (SOSR) heading of potentially fair reasons to dismiss an employee?
Yes, held the Employment Appeal Tribunal (EAT) in the recent case of Nayak v Royal Mail Group Limited, dismissing the fact that an employer did not have actual knowledge of the fact that the employee was no longer permitted to work in the UK.
Nayak v Royal Mail Group Limited
Background
It is a breach of statutory duty for an employer to employ an individual who does not have the right to work in the UK or who is working in breach of their conditions regarding staying in the UK.
Employers have a duty to prevent illegal working and must ensure that they assess whether an individual is legally certified as having the right to work in the UK at the commencement of their employment and they should take copies of the individual’s right to work documentation. If an employer is found to be employing an individual who is not permitted to work in the UK then the employer may be liable to imprisonment and/or an unlimited fine.
Qualifying employees (i.e. those who have 2+ years’ service) are entitled not to be unfairly dismissed. Where an employer is arguing that a dismissal is fair under the Employment Rights Act 1996 (ERA) on the basis that continued employment would actually contravene a statutory restriction (i.e. if the employee did not have the right to work in the UK), it is not sufficient for the employer to have a reasonable belief that the employee was working in breach of immigration conditions. However, a dismissal based on such a reasonable belief may potentially be fair for SOSR, even where the belief is mistaken.
Facts of the case
Mr Nayak was employed by Royal Mail Group Limited (Royal Mail) between 2008 and 2014. His employment was terminated because Royal Mail believed that he no longer had the right to work in the UK.
On the commencement of employment, Mr Nayak held a visa that expired on 15 April 2009. He was subsequently granted a post-study visa that expired on 1 December 2010. Prior to the expiry of his post-study visa, Mr Nayak applied for a student migrant visa. His application was initially refused, but following a successful appeal to the immigration tribunal, his application was passed to the Home Office for consideration and processing.
Royal Mail’s policy in situations where a visa application outcome is pending is to carry out employee immigration checks every 6 months. In March 2012, Royal Mail contacted the Home Office in relation to Mr Nayak’s right to work. It confirmed that Mr Nayak had the right to work in the UK ‘on the basis of an outstanding appeal’ and so Royal Mail was satisfied that it could continue to employ him.
On 3 separate occasions between August 2012 and February 2013, Royal Mail wrote to Mr Nayak and asked him to provide updated proof of his right to work in the UK. He did not respond to any of these letters. Mr Nayak wrote once to the Home Office chasing up his pending application, but received no response and made no further enquiries.
In May 2013, Royal Mail contacted the Home Office again and it confirmed that because Mr Nayak had commenced employment before 29 February 2008, the legislation applying at that date meant that no further checks were required, provided that at the start of employment checks had been carried out and copies of the checked documentation remained on file. Royal Mail had not done this and therefore further checks were required.
Between December 2013 and May 2014, Royal Mail made intensive enquiries of Mr Nayak in order to establish his immigration status. It was explained to him that his right to work in the UK could only last whilst his application remained pending. As it had been over 4 years since the original application, it was reasonable to assume that the application was no longer pending. Mr Nayak was warned that failure to provide evidence of his immigration status might result in his dismissal.
After a meeting between Royal Mail and Mr Nayak on 8 May 2014, Mr Nayak was dismissed following his failure to provide the required evidence. He appealed against this dismissal and was given a further 42 days to provide the requested documentation. Royal Mail suggested that Mr Nayak make a data subject access request to the Home Office, as the Home Office would then be obliged to respond but he did not do this and on 8 August 2014 his appeal against his dismissal was dismissed.
Mr Nayak lodged a claim in the employment tribunal for unfair dismissal. The tribunal dismissed the claim and held that there was sufficient evidence to conclude that a reasonable employer would not be satisfied that the visa application remained pending.
Mr Nayak appealed this decision, arguing that a reasonable employer would have carried out its own investigations rather than relying on the Home Office and that without taking this reasonable step, Royal Mail could not have formed a genuine and reasonable belief that he was no longer legally entitled to work in the UK. He also alleged that Royal Mail had followed an unfair procedure in subjecting him to unnecessary checks every 6 months that were not a legal requirement.
Decision
The EAT dismissed Mr Nayak’s appeal, ruling that the dismissal was both substantively and procedurally fair. Based on the following, the tribunal was entitled to conclude that there was sufficient evidence to support Royal Mail’s genuine and reasonable belief that Mr Nayak no longer had the right to work in the UK:
- Royal Mail’s enquiries of the Home Office;
- Royal Mail’s inability to obtain a response from the Home office providing up to date information regarding Mr Nayak’s immigration status;
- Royal Mail’s repeated requests to Mr Nayak over a significant period of time; and
- Mr Nayak’s persistent failure to co-operate with the Royal Mail in refusing to contact the Home Office and to submit a data subject access request.
The EAT held that the Royal Mail’s past experiences with employees in similar situations with regard to the normal timeframe of the visa application process supported the fact that the Royal Mail had a genuine belief that Mr Nayak’s immigration status may have changed.
The EAT stated that Royal Mail had taken reasonable steps to investigate the matter and had provided additional lengthy opportunities for Mr Nayak to make appropriate enquiries and to provide the required documentation.
With regard to Royal Mail’s admitted failure to take copies of Mr Nayak’s right to work documentation, the EAT concluded that this did not affect the fairness of the dismissal. The statutory protection against civil penalty given in relation to those employed prior to 29 February 2008 only applied where appropriate checks had been made at the start of employment and copies of documentation were kept on file. Therefore Royal Mail was required to carry out further checks and there was no suggestion before the tribunal that checks every 6 months was unreasonable.
Comment
The decision illustrates the distinction between a dismissal because of a statutory restriction under the ERA 1996, where an employer’s actual knowledge that continued employment would result in a breach is required and SOSR dismissals under the same Act, where an employer’s genuine and reasonable belief about a breach of a statutory restriction can be sufficient.
Employers must ensure that they comply with their duty to prevent illegal working, and they should be aware of the consequences of failing to carry out appropriate checks or to take copies of appropriate documentation.
This is arguably now more important than ever as a new Immigration Bill proposes to extend the existing criminal offence of ‘knowingly employing’ an illegal worker to apply where an employer has ‘reasonable cause to believe’ that a person is an illegal worker.
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