Fair dismissal of employee where employer reasonably believed there was no right to work in the UK

Posted by Debra Gers on
In Nayak v Royal Mail Group Ltd, the EAT upheld the Employment Tribunal’s decision that an employer’s genuine and reasonable belief that an employee was no longer permitted to work in the UK was sufficient to justify his subsequent dismissal for "some other substantial reason" and the dismissal was both substantively and procedurally fair.

Background

Mr Nayak commenced employment with the Royal Mail on 7 January 2008.  At that time, he was in possession of a work visa which expired on 15 April 2009.  Prior to this expiring, he made an application for a new visa which was subsequently issued on 1 December 2009. This Tier 1 (post study work) visa expired on 1 December 2010. 

Before that visa expired, Mr Nayak applied for a Tier 4 (general) student migrant visa as he had been accepted to study on a course in London. This was initially refused but Mr Nayak successfully appealed to the Immigration Tribunal on 27 May 2011 and his application then passed to the Home Office for consideration and processing.

From Royal Mail's perspective, the application was pending and their policy in such circumstances was to conduct 6-monthly immigration checks to minimise the risk of employing someone who had lost the right to work in the UK.

In March 2012, Royal Mail contacted the Home Office to establish the position relating to Mr Nayak's right to work in the UK. In a letter dated 9 March 2012, the Home Office confirmed that he had the right to work in the UK "on the basis of an outstanding appeal" and that appropriate document checks had to be repeated within 12 months. The letter was the last confirmation that Royal Mail received from the Home Office that Mr Nayak had the right to work in the UK and Royal Mail were satisfied that they then had a buffer of 6 months before conducting further checks. 

Royal Mail wrote to Mr Nayak in August 2012, January 2013 and February 2013 asking him to provide updated proof of his right to work in the UK but there was no response. Mr Nayak wrote once to the Home Office in April 2012 asking when his application would be determined but he received no reply and didn't contact the Home Office again. In May 2013, Royal Mail wrote another letter to the Home Office who replied that, as Mr Nayak's employment commenced before 29 February 2008, no further checks were required if, at the time of recruitment, current document checks had been carried out.

Between December 2013 and May 2014, Royal Mail gave Mr Nayak numerous opportunities to obtain and produce an update from the Home Office about his visa application but he failed to do so. At the same time, Royal Mail made more extensive enquiries of Mr Nayak about his visa application. They met with him, corresponded with him and informed him that if he failed to provide evidence of his immigration status he might be dismissed. Royal Mail explained to Mr Nayak that, as it had been over four years since the original application for a Tier 4 visa it was no longer safe to assume that it remained pending and undetermined. 

At a meeting on 8 May 2014, Mr Nayak once again failed to provide the necessary documentation about his right to work in the UK and he was dismissed by letter the following day. The reason for dismissal was "some other substantial reason" (SOSR) under section 98(1)(b) of the Employment Rights Act 1996 (ERA), specifically that, Royal Mail had a reasonably held belief that Mr Nayak did not have the right to work in the UK.

Following his appeal hearing on 16 July 2014, Mr Nayak was given a further 42 days to provide the documentation requested and was also advised to send a subject access request to the Home Office which he failed to do. The decision to dismiss was upheld on 8 August 2014 and Mr Nayak then brought an unfair dismissal claim.

Employment Tribunal and EAT proceedings

The Employment Tribunal dismissed the claim. It held that there was a fair SOSR reason for dismissal and that, in accordance with section 98(4) ERA, Royal Mail had acted reasonably when dismissing Mr Nayak for that reason. There was sufficient evidence to conclude that a reasonable employer would not be satisfied that Mr Nayak's visa application was still pending and undetermined. Further, Royal Mail's belief that Mr Nayak had no right to work in the UK was a reasonable one.

The EAT dismissed Mr Nayak's appeal. The decision to dismiss was both substantively and procedurally fair. There was sufficient evidence that supported the genuineness of Royal Mail's belief that Mr Nayak no longer had the right to work in the UK. For example, they had made significant enquiries prior to dismissal, they were unable to obtain up to date information from the Home Office about Mr Nayak's immigration status, they made repeated requests of Mr Nayak over a long period and there was a persistent failure to co-operate on his part. Indeed, Mr Nayak's conduct was a significant feature in Royal Mail's developing belief that his immigration status may have changed.  As the EAT stated, Royal Mail could not be expected to wait almost indefinitely, studiously avoiding forming any genuine and reasonable belief as to Mr Nayak's right or lack of right to work in the UK. Royal Mail had acted reasonably and fairly in concluding that Mr Nayak was no longer permitted to work in the UK. 

Comment

The decision clearly shows the distinction between an SOSR dismissal where genuine belief is sufficient and a dismissal because of a statutory restriction (section 98(2)(d) ERA), where actual knowledge is required of the breach of the statutory restriction.  

Royal Mail were right to make such extensive enquiries to establish Mr Nayak's immigration status. The sanctions for employing an individual who does not have the right to work in UK can be significant. There can be a maximum civil penalty of £20,000 for each worker who does not have the right to work here. There may also be criminal liability if an employer knowingly employs an individual who does not have the right to work here. In terms of Magistrate Court proceedings, the employer may receive an unlimited fine or imprisonment of up to six months (or both). Where there are Crown Court proceedings, the employer may be subject to imprisonment for up to two years. Bear in mind that the Immigration Bill 2015/16 proposes to increase this to five years and also includes the proposal to extend the existing criminal offence of "knowingly employing" an illegal worker to apply to circumstances where an employer has "reasonable cause to believe" that a person is an illegal worker. 

About the Author

Debra is responsible for the firm’s public employment training programme.

Debra Gers
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