In this case, Royal Mail couldn’t be certain whether its employee had permission to work in the UK or not. They therefore dismissed him, but it subsequently turned out that he did have permission. Was the dismissal fair or unfair?
There is a limited set of fair reasons for dismissal. One such good reason is where the employment would breach a statutory duty or restriction. Another good reason is known as “some other substantial reason” or SOSR.
Where an employee does not have permission to work in the UK, or is in breach of his conditions of stay, there would certainly be a breach of a statutory duty by continuing to employ him, and therefore a dismissal would be likely to be fair. Importantly, however, a proper procedure would still need to be followed.
In this case, the employee in question, Mr Nayak, only had permission to remain because he was in the process of making an appeal against a decision by the Home Office. Despite Royal Mail making enquiries both of the employee and the Home Office, they were given no clear answer as to whether or not the appeal was still in progress. The appeal had been running for over 4 years and Royal Mail’s experience led them to believe that in the absence of any other information the appeal process must have been concluded. They therefore terminated Mr Nayak’s employment.
When Mr Nayak subsequently brought an unfair dismissal claim, the Tribunal concluded that Royal Mail had made enough effort to support a conclusion that Mr Nayak no longer had the right to work in the UK. The termination was therefore fair for an SOSR reason.
This is a useful example of a case where a reasonable belief on the part of the employer was sufficient to make the dismissal fair.
Interestingly, the Immigration Bill which is currently being debated proposes to extend the offence of employing an illegal immigrant to cases where the employer has “reasonable cause to believe” that the individual is working illegally