An employer who employs a foreign worker often finds themselves caught between a “rock and a hard place” when it comes to dismissal. On the one hand they must comply with unfair dismissal law, as they would for any other employee but, on the other, they must be mindful of the strict requirements placed upon them by immigration regulations.

Employers’ need to conduct “right to work checks”

It is unlawful for an employer in the UK to employ any adult who is subject to immigration controls. If an employer undertakes certain documentary checks to ascertain whether a job applicant has the right to be in and work in the UK, they are protected against any future penalty, if it subsequently turns out the individual was not entitled to work in the UK. The potential penalty is substantial; up to £20,000. While carrying out right to work checks are a helpful “insurance policy” for an employer, there is no legal requirement to actually do them and no legal sanctions are applied if an employer does not do them.

How does unfair dismissal law operate in relation to foreign employees?

Any employee who has two years continuous service is protected against unfair dismissal (in very limited circumstances the need for this period of service may not apply). If an employer wishes to dismiss such an employee they must first have a “potentially fair” reason for the dismissal. Potentially fair reasons for dismissal are limited to: conduct, capability, redundancy, some other substantial reason and illegality. If an employer can show that it had a potentially fair reason then it must go on to show that it acted fairly in treating that reason as the reasons for dismissing that employee. This includes showing that a fair procedure was followed in carrying out the dismissal.

In cases where a foreign worker ceases to be entitled to work in the UK or, the employer becomes aware that they were never entitled to work in the UK, the reason cited for any dismissal is likely to be illegality. However, employment tribunal’s will not accept this as a fair reason for dismissal – hence the dismissal will be unfair – if they employer genuinely but wrongly believes they can no longer continue to employ the employee lawfully. Employers therefore need to be very sure of the evidence before dismissing an employee for such a reason.

Latest decision

The Employment Appeal Tribunal (EAT) whether an employer had dismissed for a fair reason when it dismissed an employee who had been unable to provide documentary evidence of their right to work in the UK during a firm wide audit (even thought he was, in fact, entitled to live and work in the UK).

The EAT overturned an employment tribunal’s decision that the employee had been fairly dismissed for illegality. It ruled that as there is no legal requirement on an employer to check documents, it was wrong for the employer to think that it would be illegal to carry on employing someone who could not produce them. However, it suggested that there may have been an alternative fair reason for the dismissal, namely “some other substantial reason” as the employer genuinely believed it would be breaking the law, even though that belief was mistaken.

Comment

Given the large penalties involved, employers are rightly nervous about continuing to employ staff who may be breaching immigration rules. However, they need to carefully weigh up each situation to decide whether any dismissal is likely to be fair; the case law suggests that foreign employees have a good chance of challenging dismissals.

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