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With penalties for employing illegal workers including fines of up to £20,000, employers usually take a cautious approach to ensuring their employees have the right to work. This article considers a recent case involving this.

Right of abode

In Baker v Abellio London Limited, the employer dismissed an employee, who was not subject to immigration control, after he failed to provide documentary proof.

Mr Baker was a Jamaican national who had lived in the UK since he was a child and had the right of abode in the UK. Abellio had employed him as a bus driver for three years when it undertook an audit of its workforce to check their right to work documentation. Mr Baker failed to provide the requested paperwork; Abellio sought to rely on the potentially fair reason of illegality under the Employment Rights Act 1996.

The Employment Tribunal found the dismissal fair, as Mr Baker’s continued employment would be in breach of the Immigration, Asylum and Nationality Act 2006 and therefore illegal.

Mr Baker appealed.

Immigration control

The Employment Appeal Tribunal (EAT) pointed out that section 15 of the Immigration, Asylum and Nationality Act only applied to people who are “subject to immigration control” and that Mr Baker was not one of those people. The EAT therefore said the tribunal was wrong to conclude that the reason of illegality was made out, going on to explain further that section 15(3) of the Immigration, Asylum and Nationality Act does not oblige employers to seek certain documents from employees but provides an excusal from potential fines if certain documents have been sought.

The EAT noted that a genuine but mistaken belief on behalf of Abellio – that Mr Baker’s employment was illegal – could render the dismissal fair but only for the potentially fair reason of some other substantial reason, not illegality.

However, on the facts, it did not appear that Abellio could demonstrate that they could have genuinely believed Mr Baker’s employment was illegal.

Right to work

This case highlights the importance of carrying out all necessary employment checks before the employee begins their employment and during employment if the right to work is limited.

The burden is usually on the employee to provide right to work documentation. However, although each case turns on its own facts, it will likely be unfair to dismiss an employee who does not provide documents proving their right to work in the UK if they do not require leave to remain. The need to follow a fair procedure and establish the facts remains if the employee has sufficient service to claim unfair dismissal.

Paper trails

When taking steps to ascertain whether someone’s employment is in fact illegal, employers should maintain a paper trail of all correspondence with the relevant regulatory and governmental bodies to be able to evidence precisely what enquiries were made, in order to be able to rely on a genuine but mistaken belief that the employment was illegal, in the event that a tribunal finds that this was not the case.

The government’s website provides a helpful tool for checking someone’s right to work, on its Check if someone can work in the UK pages.

For more information on any of the issues raised in this article or for on employment issues in general, contact Jonothan Scollen in the Leeds Employment Team by emailing [email protected] or calling 0113 368 7583.