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When a little knowledge is a dangerous thing – reliance on immigration law to justify dismissal

Every employer knows that UK law relating to illegal workers is big and fierce and that you take liberties with it at your peril. However, here is what can happen when you take it too seriously.

In Abellio London Limited – v – Baker, the EAT has this month taken a look at whether an employer’s genuine belief that immigration law says something it actually doesn’t is enough to justify a fair dismissal. Since the law here is often unclear, penalties for non-compliance are material and it can be hard to obtain definitive guidance from the authorities, the case is potentially very significant.

Mr Baker is a Jamaican national who has lived in the UK since childhood. It was not disputed at any time that he had the right to live and work in the UK, but he was dismissed by Abellio when he failed to produce the documents referred to in Section 15 of the Immigration Asylum and Nationality Act 2006 by way of proving it.

Abellio read Section 15 as a meaning that unless the employee could produce the relevant documentation, it could not lawfully employ him. It wrote Mr Baker a series of somewhat contradictory letters explaining that although it fully accepted that he had the right to work in the UK, it still could not continue to employ him until he proved it, and then dismissed him.

Normally compliance with immigration law would be a good reason to dismiss – if continued employment would be unlawful, the employer would surely have little choice. But do be careful that you have the law right, which Abellio didn’t. Section 15 does not make the holding of proof of right to work a legal requirement. It merely provides an employer with a defence if that employee is later found to be employed illegally. Moreover, by Section 25 IANA, Section 15 only applies to employees who are “subject to immigration control”, which Baker was not. As a result, Abellio could not use the legal position as justification for his dismissal.

But even if it were wrong about what the law actually required, could Abellio’s genuine belief that it had to act as it did nonetheless amount to “some other substantial reason” and be the basis of a fair dismissal that way instead? In other words, is it ok to be wrong about the impact of immigration law so long as you think you are right?

The EAT thought that this could potentially be ok – after all, if you dismiss someone for misconduct, you need only a genuine and reasonable belief in that employee’s guilt, not absolute proof. There was no question but that Abellio genuinely believed production of the Section 15 documents to be a pre-condition of lawful employment, but it was less clear that that belief was reasonable. That seems harsh given that it had received supportive advice from both the Home Office and the UK Border Agency, but it was unclear whether it had asked the right questions of those bodies. In particular the EAT did not know whether Abellio had told them that Baker was not subject to immigration control (in which case, one would hope, a different answer would have been given). But that in turn assumes that Abellio knew Baker was not subject to such controls. Since he is not a UK or EU national, that would have been a pretty brave call for most employers.

Lesson for Employers

Because the EAT had insufficient evidence on the point, the matter was sent back to the Employment Tribunal for another go. If it decides that Abellio’s belief that it needed the Section 15 documentation as a condition of Baker’s continued employment was reasonable, the dismissal should be fair even though the company was wrong.

However, if the ET concludes that employers are under a greater or more rigorous duty of enquiry as to the “ins” and “outs” of the UK’s complex immigration regime, we hope at least that it will express a view as to what sort of enquiries need to be made. It would be an unsatisfactory state of affairs for employers trying their best to stay on the safe side of the immigration rules then to be caught by the unfair dismissal regime instead.

© Copyright 2017 Squire Patton Boggs (US) LLP

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About this Author

David Whincup, Employment Attorney, Squires Patton Boggs Law Firm
Partner

Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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