In a recent decision, the Employment Appeal Tribunal (EAT) has found that the dismissal of an employee of Royal Mail for not having the right to work in the UK (despite the fact he actually did) was fair.
Background
Employees must have a legal right to work in this country or the employer can face fines of up to £20,000 per illegal worker. Employers who carry out the correct checks and keep the relevant information on file will have a statutory defence to an allegation that they have employed an illegal worker. An employee can continue to work legally in the UK under the terms of an expired visa while the Home Office reaches a decision regarding an application for a new visa or an appeal in respect of a refusal.
Employers can fairly dismiss an employee for the potentially fair reason of “some other substantial reason” (SOSR) where they have a reasonable belief that an employee no longer has the legal right to work in the UK.
The facts
Mr Nayak started work for Royal Mail in January 2008, at which time he held a valid visa. On December 2010 Mr Nayak’s visa expired and he was unsuccessful in his application for a new one. Mr Nayak appealed successfully against the refusal but his original application remained outstanding.
Royal Mail had a policy of checking “relevant” employees’ right to work on a six monthly basis, relevant employees being ones who have a right to work by virtue of an outstanding appeal or undetermined application to the Home Office. This policy was designed to ensure that all employees have the legal right to work regardless or not of whether a statutory defence to a civil penalty may apply.
Royal Mail checked with the Home Office whether Mr Nayak had the right to work on a number of occasions. On 9 March 2012 the Home Office wrote to Royal Mail confirming Mr Nayak’s right to work on the basis of an outstanding appeal. Royal Mail decided it could wait a further six months and subsequently wrote to Mr Nayak on three separate occasions requesting updated proof of his right to work in the UK. Mr Nayak did not respond. Royal Mail contacted the Home Office again. The Home Office confirmed that because of Mr Nayak’s start date, no further checks needed to be done by Royal Mail if they had, at the outset of his employment, carried out checks and retained copies. Royal Mail had not done this and so between December 2013 and May 2014 Royal Mail made more intensive enquiries of Mr Nayak to try and find out if he did have the right to work in the UK. Royal Mail’s position was that while Mr Nayak could lawfully work while his visa application was pending, as it had been four years since the original application, it was not safe to assume it was still pending.
Mr Nayak was formally warned that he may be dismissed if he did not supply evidence of his right to work but still failed to do so. He was dismissed in May 2014.
Mr Nayak appealed and was given an extra 42 days to prove his right to work. The appeal officer suggested to Mr Nayak that he could make a data subject access request to the Home Office. Mr Nayak did not take up the suggestion and his dismissal was upheld.
Mr Nayak brought a claim for unfair dismissal. The employment tribunal rejected the claim on the grounds that a reasonable employer would not be satisfied that the visa application remained pending and undetermined.
Mr Nayak appealed to the EAT. The EAT rejected Mr Nayak’s appeal. The EAT concluded 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 had taken reasonable steps to investigate the position and had done so with the benefit of their past experience of employees in similar situations.
Comment
This is quite a fact specific case. However, it is also a useful reminder that the test in SOSR unfair dismissal cases is whether the employer had a reasonable belief in the basis for their decision to dismiss; not that the employer must have absolute proof of the basis for the dismissal.
In this case Royal Mail had a sensible and justifiable policy of requiring renewed proof of certain specific employees’ right to work every six months. In addition, in these particular circumstances, Royal Mail exercised quite a high level of discretion in exercising the policy; Mr Nayak was not simply dismissed after failing to provide proof of his right to work after the six month mark had passed. Further, the appeal officer had allowed the claimant an additional period of time to provide proof of his right to work.
The tribunal and EAT approved the approach taken by Royal Mail in this case. Although it can be frustrating to employers who feel they are not acting as decisively as they would like in disciplinary/dismissal proceedings, this case is a reminder that exercising patience in such situations can pay dividends down the line.
The Stephens Scown employment team works in partnership with organisations to improve their HR practices and advise on employment issues. To discuss this or any other HR issue call 01392 210700 or employment@stephens-scown.co.uk.