Signed, sealed, dismissed

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n Nayak v Royal Mail Group Ltd (UKEATS/0011/15/SM), the EAT had to decide whether a dismissal due to an employer's genuine belief that the employee was not permitted to work in the UK was fair.

Facts

Mr Nayak was employed by Royal Mail Group (RMG) between 7 January 2008 and 9 May 2014, when his employment was terminated because RMG believed he no longer had the right to work in the UK. When he started work, he had a visa that expired on 15 April 2009; he then had a Tier 1 (post-study) visa that expired on 1 December 2010; before his post-study visa expired, he applied for a Tier 4 (general) student migrant visa. His application was initially refused but he made a successful appeal to the immigration tribunal in May 2011 and his application was then passed to the Home Office for consideration and processing.

In March 2012 RMG sought confirmation from the Home Office regarding Mr Nayak's right to work in the UK. The Home Office confirmed that he had the right to work in the UK 'on the basis of an outstanding appeal'. In August 2012, January 2013 and February 2013 RMG wrote to Mr Nayak asking him to provide updated proof of his right to work in the UK. He did not respond. In May 2013 RMG wrote again to the Home Office. They confirmed that, because Mr Nayak had commenced employment before 29 February 2008 (when the rules changed), no further checks were required as long as document checks had been carried out at the start of his employment and copies of the original documents checked by RMG remained on file. RMG had not done this.

Between December 2013 and May 2014 RMG made further enquiries of Mr Nayak to try to establish his immigration status. He was told that the right to work could only last while his application for his Tier 4 visa remained outstanding. As his application for a new visa had been made over four years earlier, it was not safe to assume that it was still pending. Mr Nayak was warned that a failure to provide evidence of his immigration status could result in his dismissal. He failed to produce satisfactory documentation and was dismissed. He appealed and was given additional time to prove his status. RMG suggested that he make a data subject access request to the Home Office seeking confirmation of his status, which he failed to do. The decision to dismiss him was upheld and he brought a claim for unfair dismissal.

Employment tribunal decision

The employment tribunal (ET) rejected Mr Nayak's claim. It held that there was sufficient evidence to conclude that a reasonable employer would not be satisfied that Mr Nayak's visa application remained pending. Nr Nayak appealed.

EAT decision

The EAT dismissed the appeal and upheld the ET's decision. It held that the ET had been entitled to conclude that there was sufficient evidence to support RMG's genuine and reasonable belief that Mr Nayak no longer had the right to work in the UK. His dismissal was both substantively and procedurally fair. There was ample evidence to show RMG's attempts to establish Mr Nayak's immigration status over a period of several years and his persistent failure to co-operate. RMG had taken reasonable steps to investigate the position and its admitted failure to carry out the initial document check had no bearing on the fairness of the dismissal. RMG could not be expected to wait indefinitely and the timeframe given to Mr Nayak in which to respond was reasonable.

Comment

This decision is helpful for employers where they are unsure of an employee's immigration status and are unable to establish it. Where it is clear that an employee does not have the right to work in the UK, employers can dismiss because of a statutory restriction (ie that continued employment would breach a statutory enactment). This case shows that, where an employer suspects - but does not know - that the employee does not have the right to work here, it is possible to dismiss fairly if they hold a reasonable and genuine belief that this is the case, provided they have carried out a reasonable investigation.

RMG had a policy of requiring all employees subject to time limited immigration control to provide renewed proof every six months of a continuing right to work in the UK. The EAT confirmed that this was a reasonable policy.

Note that the Immigration Bill proposes extending the existing criminal offence of knowingly employing an illegal migrant so that it would also apply where an employer has reasonable cause to believe that a person is an illegal worker.

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Right to work in the UK: when can an employer dismiss fairly?

The Employment Appeal Tribunal has recently considered whether an employer dismissed an employee fairly in the mistaken belief they no longer had the right to work in the UK.

The court assessed whether an employer could fairly dismiss an employee who they believed no longer had a right to work in the UK, regardless of the employee's true immigration status.

The law

Under the Employment Rights Act 1996 (the Act) a dismissal will be fair if an employer can show that they had one of five potentially fair reasons for the dismissal and that they acted reasonably in dismissing the employee for that reason.

One of the potentially fair reasons for dismissal is some other substantial reason (SOSR). An alternative fair reason is that continued employment would be a breach of a statutory duty (often referred to as "illegality").

It is unlawful to employ an individual who does not have the right to work in the UK, or is working in breach of their conditions to stay in the UK. Employers have a legal obligation to carry out pre-employment checks. If sufficient pre-employment checks are carried out employers obtain a defence against liability for a civil penalty of up to £20,000 per illegal worker.

Under section 3C of the Immigration Act 1971 where, before the expiry of a current visa, an individual makes an application for a new visa, they will retain the right to live and work in the UK under the terms of their previous visa, as long as the new application has not been decided by the Home Office, has been withdrawn or an appeal against a refusal is outstanding.

The case

In the recent case of Nayak v Royal Mail Ltd UKEATS/0011/15 the employee started work with the Royal Mail on 7 January 2008 with a work visa which expired on 15 April 2009. Prior to its expiry, he applied for a new Tier 1 (post study work) visa which was granted with effect from 1 December 2009 to December 2010. On approaching expiry of this visa he applied for Tier 4 (general) student migrant visa as he had been accepted for a course starting in September 2010. This application was refused and he made an appeal to the First-tier Tribunal (Immigration and Asylum Chamber).

To minimise any potential risk of employing someone whose visa application outcome was pending and who may have lost the protection of section 3C, Royal Mail had a policy of checking an employee's immigration status every six months.

From March 2012 Royal Mail contacted both the Home Office and the employee to check the status of the visa application. The Home Office confirmed in March 2012 that the employee had the right to work "on the basis of an outstanding appeal". Royal Mail contacted the employee on several occasions over the next year to request an update but he did not respond.

By May 2014 Royal Mail was making more thorough enquiries of the employee to establish his immigration status and right to work. Royal Mail was concerned that it was no longer safe to rely on the outstanding appeal and original application given the passage of 4 years, and warned the employee that his continued failure to provide the necessary documentation may result in his dismissal.

At a meeting on 8 May 2014 he failed to produce any documents and he was dismissed on 9 May. He appealed the decision and was given a further period of 42 days to provide documentation. During that time he made no attempt to contact the Home Office and the decision to dismiss was upheld. He brought a claim before the employment tribunal for unfair dismissal.

The decision

The claim was dismissed by an employment tribunal on the basis that a reasonable employer would not be satisfied that the employee's visa application was still pending and undetermined.

The Employment Appeal Tribunal (EAT) dismissed the claimant's appeal and upheld the tribunal's decision. It considered that the dismissal was both substantively and procedurally fair.

The EAT found that Royal Mail made reasonable enquiry into his circumstances but, at the date of dismissal there was insufficient evidence available to it of the employee's right to work in the UK. Royal Mail therefore acted reasonably in treating this as a SOSR dismissal. The employee's repeated failure to respond to his employer's requests for information, the total number of requests and Royal Mail's inability to obtain a response directly from the Home Office were all relevant considerations.

Practical implications for employers

The case demonstrates that a SOSR dismissal will be fair where an employer has a reasonable and genuine belief that the employee no longer had the right to work in the UK, whether that belief turns out to be correct or not. This should be distinguished from dismissal for breach of a statutory duty where an employer must have theknowledge that continuing to employ the individual will breach a statutory restriction.

Employers should maintain their immigration and right to work policies and ensure that they are up to date, effective and properly utilised. The EAT deemed Royal Mail's policy of checking employees' right to work every six months was reasonable and responsible