No, according to the judgment of the EAT in Baker v Abellio London Ltd. Ruaraidh Fitzpatrick, a pupil at Cloisters considers this important judgment in which Chris Milsom represented the Claimant.
The Claimant, Mr Baker, is a Jamaican national with the right to live and work in the United Kingdom. He was employed as a bus driver by the Respondent, Abellio, since July 2012.
In 2015, Abellio became aware that another employee did not have the correct documentation to prove that he was legally entitled to live and work in the UK. Section 15(2) of the Immigration, Asylum and Nationality Act 2006 provides that an employer who employs workers who do not have the right to work in the UK may be subject to a civil penalty notice of up to £20,000. As a result of this, they decided to carry out an audit of their workforce to ensure that other workers possessed the correct documentation.
As part of this audit, they asked Mr Baker to produce one of a list of documents to prove that he had the right to work in the UK. Mr Baker, while enjoying the right of abode, did not have a document from the list provided by his employer.
Abellio suspended Mr Baker without pay until he could produce evidence of his right to work. Abellio were determined that they needed such documentation, despite the fact that the Home Office had confirmed Mr Baker’s right to live and work in the UK.
Abellio scheduled further meetings with Mr Baker where they required that he attend with evidence of his right to work. Mr Baker did not attend these meetings. Letters were sent to Abellio on Mr Baker’s behalf explaining that he did not need documentation to prove his right to work and highlighting the Home Office’s confirmation of his right to live and work in the UK.
Mr Baker was dismissed by letter on 6 July 2015. The letter from Abellio stated:
“…whilst you have the right to reside and work in the United Kingdom, your current documents do not provide Abellio, your current employer, with a statutory excuse to allow you to work for our Company under the Immigration, Asylum and Nationality Act 2006 … Taking all this into account, my decision is to terminate your employment as you are not entitled to work in the United Kingdom and you have failed to attend the meeting scheduled for 3rd July 2015 with myself. I can only assume you do not have the documents required by law to work in the UK as you have failed to produce them”.
In short – Mr Baker, who his employer acknowledged had the right to live and work in the UK - was dismissed for his failure to provide documents proving his right to live and work in the UK.
It was clear from Abellio’s correspondence that they believed that they had dismissed Mr Baker due to a statutory requirement. Specifically, that section 15(3) of IANA required employers to collect certain documents if employing foreign workers.
The Employment Tribunal agreed with this assessment, with the Employment Judge holding that:
“… his employer could not continue to employ him without contravening its obligations under the Immigration and Asylum Act 2006 to obtain specific documentary proof that the claimant had the right to work in the UK. In accordance with that legislation, if they had continued to employ him then they would have been potentially liable for a substantial fine or criminal prosecution.”
Employment Appeal Tribunal
Mr Baker appealed against the finding of the Employment Tribunal that he had been dismissed due to a statutory ban and that there was some other substantial reason for his dismissal.
The Employment Appeal Tribunal clarified what the immigration rules require an employer to do. The Employment Tribunal had erred on two counts.
First, s.15 of IANA did not apply to Mr Baker. Section 15 only applies to the employment of an individual subject to immigration control. Section 25 of the Act makes clear that a person, such as Mr Baker, who has the right to live and work in the UK, is not subject to immigration control.
Secondly, even if Mr Baker had been subject to immigration control, the Employment Tribunal had been mistaken in its construction of s.15. Section 15(3), the section which relates to the provision of documents, does not impose a requirement on an employer to obtain certain documents; it provides for an ‘excusal from penalty’. That is, an employer who has obtained documentation establishing a worker’s right to work in the UK may avoid or have reduced any fine imposed by the Home Office if it transpires that the worker did not have such a right.
However, the Employment Tribunal also stated that dismissing Mr Baker for 'some other substantial reason' under s.98(1) could be fair if the employer had a genuine but erroneous belief that it was impossible to continue to employ him due to a statutory ban, per Bouchaala v Trusthouse Forte Hotels. The fairness of such a dismissal was remitted to a fresh Employment Tribunal for reconsideration.
Following Brexit, many employers will be concerned about both the regulatory difficulties and potential for steep fines that may arise from hiring workers who do not have the right to work in the UK.
Baker confirms that at least one element of this concern – obtaining documents to establish an employee’s right to work – is not an obligation placed upon employers. However, that is not the end of the matter. Were the Home Office mistaken as to Mr Baker’s right to work, Abellio would not have been able to rely on such an assurance for the purposes of an s.15 excusal from penalty, leaving them liable to pay a hefty fine. Keeping records of any questions asked of or advice or responses given by the Home Office and UKBA would be good practice.
A failing on the part of the Respondent was their fixation on the documentation required to prove whether a worker had the right to work in the UK, as opposed to whether the individual had the right to work or not. This fixation resulted in Abellio missing the wood for the trees; ignoring the purpose which the documentation served.
In this case, Abellio waited more than 18 weeks between initially asking Mr Baker to produce the documentation they sought and dismissing him for failing to do so. Providing for such a period of time, especially for an employee such as the Claimant who had worked for them for around 3 years, was a sensible decision. Giving a worker a generous amount of time is likely to assist in ensuring that the employer is seen as having acted reasonably.
However, a pitfall which the Respondent fell into in this case was stopping the Claimant’s pay after the initial failure to provide the requested documents. A concern or a reasonable belief that an employee does not have or has lost their right to work is not sufficient to cease their wages. Likewise, a knee-jerk reaction of immediately dismissing any employee who the employer believes to be working without the right to work should also be avoided. A fair process must be followed in both circumstances to establish whether the individual is in fact unlawfully employed. If there is any doubt to the matter then in order to prevent a claim for wrongful deduction of wages, the employee should continue to be paid. As is usually the case in managing employment relationships, a staid, sensible approach to dealing with potential problems should be adopted over a hurried or panicked response.