Dismissal for failure to produce right to work documents was unfair

One of the potentially fair reasons for dismissal is ‘statutory illegality’ or ‘statutory ban’ where the continued employment will cause the employer to breach a legal duty or restriction. This reason has been examined in a recent case. In Baker v Abellio London Ltd, the employee was a Jamaican national who had the right to live and work in the UK under the Immigration Act 1971. Following an internal audit, the employer asked Baker to produce documents that proved his right to work. Baker explained that he had the right to work in the UK and did not have a passport because this had expired. Baker was placed on unpaid leave until he produced his documents. The employer made a loan of £350 for Baker to apply for a passport but then told him that he would also need to provide visa documentation. Baker received a new passport and took this to HR in May 2015. After seeking advice from the Home Office, the employer informed Baker that this was not sufficient evidence to provide the company with a statutory excuse to continue to employ him. Instead, he would need to complete a No Time Limit application and submit this. Baker did not apply for this, failed to attend later meetings and was dismissed by reason of illegality for failing to produce documentation required by the law. Baker brought a claim of unfair dismissal. At tribunal, they found the dismissal was fair by reason of statutory illegality. The employer could not continue to employ Baker without breaching their legal obligations to collect documentary evidence from employees proving they had the right to work in the UK. If not this was a fair ‘some other substantial’ (“SOSR”) reason because the employee refused to obtain evidence after being given sufficient time and support. The Employment Appeal Tribunal (EAT) overturned the tribunal decision. The dismissal did not fall within the statutory illegality ground because Baker was not subject to immigration control; he had the right to work and reside in the UK. The EAT, however, agreed that this could fall within a ‘some other substantial reason’ dismissal because the employer believed they would be acting illegally if they didn’t receive the documents they thought were required. As this was a mistaken belief, the employer would have to prove to a tribunal that their belief was reasonable, using evidence of what was asked of the Home Office or Border Agency and what was said by these bodies. As the tribunal had not looked at the reasonableness of the belief, this issue was remitted back to tribunal. What this means for employers:

• A dismissal will only be fair under the statutory illegality ground where the continued employment will actually break the law, not where the employer wrongly believes this to be the case.
• Employers can rely on the ‘some other substantial reason’ ground to achieve a fair dismissal, however, they will be required to prove this belief was reasonable.
• Evidence will support an employer’s argument that their belief was reasonable. If possible, documentary evidence of the information provided to the Home Office, and received back, should be collected and stored on the employee’s file. This will then be available if any issues crop up at a later date.