Fair dismissal where no evidence of right to work in the UK

[POSTMAN]

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Nayak v Royal Mail Group Limited UKEATS/0011/15/SM

Why care?

Under Section 3C of the Immigration Act 1971 if a non-European national holds a visa and makes a valid in time application prior to the expiry of their current visa to extend their visa, or switch their visa status into another category, they retain the right to live and work in the UK under the terms of that initial or existing visa provided that a decision has not been made by the Home Office.

All UK employers are required to take and maintain evidence of their employee’s right to work in accordance with certain prescribed guidelines to establish a statutory excuse (i.e. defence) against findings of illegal working.

Whilst the requirement to undertake right to work checks, and retain evidence of those checks, applies to all employees, on 29 February 2008 the Home Office introduced civil penalties under section 15 of the Immigration, Asylum and Nationality Act 2006 where employers are found to be employing people illegally. These penalties are currently set at a maximum of £20,000 per illegal worker. Employers will have a defence against the civil penalty for those employees recruited before 29 February 2008 so long as compliant right to work checks were undertaken at the time of recruitment.

The case

Mr Nayak started work for the Royal Mail on 7 January 2008. At this point, the Royal Mail did not undertake right to work checks and retain evidence of his right to work in the UK. He made in time applications to extend his visa on a number of occasions, latterly by way of an appeal against a Tier 4 General student visa rejection. No evidence was produced to the Royal Mail about this.

Royal Mail submitted a number of Employer Checking Service (ECS) checks to verify Mr Nayak’s right to work first in March 2012 where they mistakenly gave an employment start date after 29 February 2008. The Home Office confirmed that, at that time, Mr Nayak had the right to work on the basis of his outstanding appeal and the check should be repeated after 12 months. In a second check in May 2013 they have the correct start of employment date. The ECS said that, based on the correct start date, Royal Mail did not need to undertake further right to work checks if, at the point of recruitment, the correct right to work checks have been undertaken.

Notwithstanding the ECS advice, Royal Mail wanted to ensure employees had the right to work legally in the UK. They wrote to Mr Nayak and interviewed him on a number of occasions to ask him to provide updated evidence of his continuing right to work lawfully in the UK. He chose not to provide this evidence. They explained that they were concerned that, given the passage of time, they could no longer safely assume that the application could no longer be pending and undetermined. Mr Nayak referred to Section 3C to say that this gave him the right to work lawfully. On 8 May 2014, Royal Mail dismissed Mr Nayak for some other substantial reason (namely not providing right to work evidence, and that they considered that they had taken all reasonable steps to confirm the position). On appeal he was offered a 42 day grace period during which Royal Mail suggested he submit a data subject access request to the Home Office to obtain the documentation requested. Mr Nayak chose not to do this and the decision to dismiss was upheld.

In the Employment Tribunal, Royal Mail accepted that if Section 3C applied then Mr Nayak had a continuing right to work in the UK. However, they considered they did not have sufficient evidence (having made reasonable enquiries) that Section 3C continued to apply. Mr Nayak countered that, if Section 3C applied, Royal Mail could not form a reasonable belief that he was working illegally and had no obligation to make reasonable enquiries into this. He also said that, had the Royal Mail not wrongly advised the ECS of Mr Nayak’s start date, he would not have been subject to these checks.

The Employment Tribunal and EAT agreed with Royal Mail. As Royal Mail dismissed on the basis of some other substantial reason (section 98(1)(b) ERA 1996) and not illegality (section 92(2)(d)ERA) they did not need to demonstrate actual knowledge that Mr Nayak was prohibited from working but just a genuine and reasonable belief that he could not legally work in the UK. Such a belief could be mistaken but still reasonable.

Both tribunals observed that Royal Mail had made repeated requests of Mr Nayak to confirm his status which amounted to reasonable questions which he refused to answer. The fact that Royal Mail had not carried out compliant right to work checks at the start of his employment did not, in fact, change the outcome in any event. Even had this been explained to the ECS at the outset, Royal Mail were still required to undertake the additional checks. Royal Mail had provided sufficient evidence of a reasonable and genuine belief that Mr Nayak had not demonstrated his ongoing right to work in the UK. This was assisted by Mr Nayak’s conduct when asked to make his own enquiries of the Home Office both during the four year period and when given an extended appeal period specifically to make enquiries.

What to take away

This case contains a number of interesting points which bear consideration...

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[Tman]

Here's something Nayak can take away-
He seems to have been given ample opportunity to "prove" he was here and working legally, but he chose not to, and paid the price by being dismissed.
More money taken from an ever-decreasing public purse to hear cases where the verdict can only go one way due to the actions of the "defendant". Utter waste of time and money.

[NWpostie]

In the years that he has been here, I am surprised he didn't apply to be a British Citizen unless based on his surname, I am assuming he is a Indian/ Pakistani national, it is illegal for them to have dual nationality as they would have to give up Indian/Pakistani citizenship and no automatic right to return and live in India or Pakistan, he would be treated as if he is a foreign national.

He has been many opportunities to prove his case and he has failed to do so, I would say he is an overstayer trying to play the system and should be returned to his home country.