If an employer employs someone who does not have the right to work in the UK, it may be subject to a penalty of up to £20,000. However, the employer will have a “statutory excuse” if it can show it carried out certain documentary checks on the worker regarding their right to work. So, if the Home Office was to find that a worker did not in fact have the right to work in the UK, but their employer can show it did the correct document checks, the employer would not face a penalty fine for that illegal worker.
However, if an employer knowingly employs someone who does not have the right to work in the UK, there is no “statutory excuse” available. This is a criminal offence, with a penalty of up to 2 years imprisonment and/or an unlimited fine.
The case of Baker v Abellio London Limited looked at whether it was fair to dismiss an employee for “illegality” when he could not provide his employer with documents showing he had a right to work in the UK.
Mr Baker was employed by the Company as a bus driver, from 2012. Mr Baker was a Jamaican national, who had been in the UK since childhood. He had a right to live and work here.
In 2015, the Company did an audit of all employees’ “right to work” documentation, to make sure it had copies of the relevant documents on file for all staff. As the Company did not have any such documentation for Mr Baker, it asked him to provide it. Mr Baker did not have a passport, or any other suitable evidence of his right to work in the UK. He was suspended by the Company, and was asked again to provide the necessary documents. Mr Baker maintained that he had the right to live and work in the UK. This was later confirmed to the Company by the Home Office. However, as Mr Baker could not actually provide the necessary documents, the Company believed that his continued employment would be illegal, and dismissed Mr Baker for that reason. Under the Employment Rights Act, it is potentially fair to dismiss an employee if it would be illegal to continue to employ them.
Mr Baker brought a claim for unfair dismissal.
The Employment Tribunal (ET) decided the Company had shown “illegality” was the reason for dismissal, and dismissal for that reason was fair. Alternatively, the ET decided Mr Baker had been fairly dismissed for “some other substantial reason” (which is also a potentially fair reason for dismissal under the Employment Rights Act), given that Mr Baker was legally entitled to work but simply could not prove it.
Mr Baker appealed to the Employment Appeal Tribunal (EAT). The EAT disagreed with the ET on the “illegality” point, and decided that was not a fair reason for dismissing Mr Baker in the circumstances. This was because Mr Baker was actually entitled to live and work in the UK. For an employer to rely on “illegality” as a reason for dismissal, it must actually be the case that continued employment would be illegal. As Mr Baker could legally work in the UK (albeit he could not actually provide documentary evidence to prove it), it was not, in fact, illegal for the Company to continue to employ him.
However, in relation to “some other substantial reason” for dismissal, the EAT decided that Mr Baker’s dismissal could potentially be fair, if the Company had a genuine (but mistaken) belief that Mr Baker’s employment was illegal. The EAT sent the case back to a new ET to consider whether dismissal for that reason was fair.
What should employers take away from this case?
- It can be fair to dismiss an employee if they cannot provide the necessary documents regarding their right to work, but it may be better to rely on “some other substantial reason”. An employer cannot rely on “illegality” as the reason for dismissal if, in fact, it turns out that the employee has the right to work in the UK.
- Before dismissing an employee in these circumstances, the employer should make sure it investigates the issue fully, and discusses it with the employee, warning them of the consequences of not providing the necessary documents.
- If an employer thinks a worker is able to work in the UK, that is no defence if it turns out the employer was wrong. The employer cannot escape liability unless it has actually carried out the relevant checks. An employer needs to balance the risk of not being able to rely on the “statutory excuse”, against the risk of dismissal.
What “right to work” checks should be carried out?
Checks should be carried out on all employees, regardless of nationality. Doing the checks on just foreign employees, or employees who the employer thinks may be foreign, may amount to race discrimination.
A right to work check should be carried out before employment starts, and involves the following steps:
1 - Obtain specified, original documents from the employee. The relevant documents are set out by the Home Office in two “lists”. The documents in “List A” (such as a UK passport) provide proof that an individual has the right to work with no restrictions, whereas “List B” documents provide a time-limited proof that the individual has the right to work;
2 - Check the documents relate to the employee and are original, unaltered and valid; and
3 - Copy the documents and keep the copies securely, and record the date of the check and the date for any follow-up checks, for example if the employee’s right to work is time-limited.