How far can you rely on right to work checks?

In Badara v Pulse Healthcare Limited, the Employment Appeal Tribunal (EAT) held that the organisation was wrong to completely depend on a negative right to work check when deciding to withhold work from the claimant.

The claimant was a Nigerian national who had previously married a European Economic Area (EEA) national living in the UK. Before commencing work for the organisation, he provided a valid Residence Card that had an expiry date of 20th January 2015. Under the terms of his contract, he had to provide the organisation with evidence of his eligibility to work and inform them if there were any changes to his circumstances.

As he had an automatic right to work in the UK through marriage, this did not change when the card expired. However, mistakenly believing he had lost his right to work, the organisation requested that he apply for a new card and provide them with evidence. Following this, the organisation submitted a series of requests with the Government’s Employer Checking Service (ECS) regarding the employee that all came back negative. As a result, they stopped providing him work and pay.

The employee did apply for a new card but raised a grievance, arguing that he had an automatic right to work due to his immigration status. The situation escalated to the employment tribunal (ET). He was finally able to present a new card by 15th October 2015 however, following the dismissal of his claims by the original tribunal; his contract was terminated with immediate effect on 17th November 2015. As a result, he brought separate claims to a new ET for unlawful deduction of wages, direct and indirect discrimination.

The ET held that the employee was entitled to compensation for unlawful deduction of wages between the date he provided his new card and his date of termination, covering a period of just under five weeks. Turning to direct discrimination, the ET held that although there had been unfavourable treatment in withdrawing work, the organisation believed it was acting to ensure compliance with immigration law. The ET also accepted that solely relying on the ECS results when deciding whether to continue offering him work could be objectively justified.

The employee appealed the rulings on unlawful deductions and indirect discrimination to the Employment Appeal Tribunal (EAT). In forming their decision the EAT referred to the case of Okuoimose v City Facilities Management (UK), where it was ruled that an individual who was a family member of an EEA national did not need to depend on documents from the Home Office to prove their right to work.

The EAT decided that employee had been subjected to unlawful deductions and indirect discrimination. This is because he had had the right to work in the UK at all times. It did not matter that he could not provide relevant documentation and the reliance of the employer on the ECS was not a proportionate means of achieving a legitimate aim.

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