By Sally Cowen
Last week Byron, the upmarket burger chain called their employees into a meeting, which was cast as a meeting to teach them how to cook burgers. Immigration officers turned up to this (allegedly) stooge meeting (the employees were not there to learn how to cook burgers, but apparently to be investigated by the Immigration Service). Immigration detained and removed a number of employees – whom it turns out had been working on illegal passports and visas. It was reported that some of the employees were deported from the UK that evening, without the opportunity to say their goodbyes to family or colleagues.
The following day, protestors stood outside one of the restaurants in Central London, bearing placards citing that Byron should not have “turned them in” and “live and let live”. The problem with this protest was that what the protestors either did not appreciate, or at least chose to ignore, was that the Immigration Act 2015 imposes obligations on the employer; a fine from the criminal courts of up to £20,000 per illegal employee can be imposed; an obligation to report any suspicious employee or documentation; an obligation to check and retain copies of that documentation. All this legislation has made the employer (as well as landlords) gatekeepers for the Home Office. Byron were obliged to co-operate or risk being accused of complicity in the illegal earnings of their employees.
The backlash from this has raised interesting considerations from an Employment adviser’s point of view. There are a number of issues as to how an employer faced with this situation handles it and in particular the remaining employees, to ensure not only that they remain within the law, but also that they retain the best possible working relationship.
Those who were removed by the Immigration service in such a situation would be hard pushed to suggest that their employer had been unfair in summarily dismissing them (not to mention the fact that they would have to initiate proceedings from their home country). An employer is likely to succeed in arguing illegality of contract or frustration of contract once staff have been deported. The only problem might arise if any of the staff who were removed, appealed and then returned to the UK – would the employer be obliged to return them to their posts? In short, it is unlikely, as firstly the ex-employees are likely to be out of time to make any application. Secondly, all parties are free to choose whom they enter into a contact of employment with. It would not be likely that the employer could be forced to re-employ anyone.
For those who are not deported, there may be expressions of disbelief that their employer could have lied to them to bring them to a meeting, or that their employer had reported them to the authorities in the first place. An employee who feels that their employer has acted in a manner which goes to the root of their contract and which was ‘ calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’, may accept the repudiatory breach of contract and claim constructive unfair dismissal. However crucially the term will only be breached if the employer acts without good cause.
It certainly might be thought that any foreign national who is employed by such an employer may have good reason to feel undermined. On the other hand, those who were removed were committing an offence and therefore must have been aware that they were living somewhat precariously. Any legal and legitimate employee would not have any reason to be concerned and is never likely to be targeted in this way, the whole scenario might then have come as a shock to them. In response to such a claim the employer could argue that there was good cause to have checks made: compliance with the immigration law.
A further interesting point which would arise in such a case is whether or not the repudiatory conduct needs to be addressed to the employee claiming the dismissal. I would suggest that it does as the contract is personal between the Claimant and their employer. Is the way in which your employer handles your colleagues, a potentially repudiatory matter to your contract of employment? It could be, if the issue which the remaining employees have, is the fact that the employer lied to them about the purpose of the meeting. That undermines their personal trust in their employer and would be sufficiently personal to warrant a breach of their contract of employment.
The test for breach of trust is an objective one according to Leeds Dental Team Ltd v Rose  IRLR 8, EAT. As Judge Burke put it:
”The test does not require a Tribunal to make a factual finding as to what the actual intention of the employer was; the employer’s subjective intention is irrelevant. If the employer acts in such a way, considered objectively, that his conduct is likely to destroy or seriously damage the relationship of trust and confidence, then he is taken to have the objective intention spoken of…’‘
Thus if the ET considers that the action of the employer was likely to destroy or seriously damage the relationship of trust and confidence, and was without good cause, that could be sufficient for the Claimant to win. The difficult part of the test for the employee might be, that the breach was not so significant as to be fundamental to the contract. The actions towards those who remain would certainly not be as severe as it was towards those who were deported. A Tribunal would have to consider whether the contract had been fundamentally breached by this action. However the basis on which people were selected to attend the ‘meeting’ might indicate that there was not “good cause”. This will especially be the case where the employer has discriminated.
Foreign national employees may raise the issue of race discrimination. Were the actions of the employer discriminatory to those who are not British citizens (or EU citizens)? By selecting persons to come to such a ‘meeting’, or by allowing Immigration officials to come into the workplace, was the employer placing those who are not UK citizens (or are perceived as foreign) in a less favourable position and did they suffer a detriment? Alternatively, were the non- UK citizens subject to conduct which violated their dignity, or was there an intimidating, hostile, degrading, humiliating or offensive environment at work? These would be interesting points for the ET to consider. It is possible that an employer would defend such a claim (in part) by relying on their legal duty to co-operate with the Immigration Services and therefore to say that they did not willingly treat those non-UK citizens any differently, or harass them, but were forced to do so by legal obligation. Not your usual defence to a discrimination claim, but one which might be argued.
A further issue which would be raised in such a claim would be the basis of the discrimination. The argument on behalf of the employer might be that any discrimination would be on the basis of immigration status and not on the basis of race (nationality). This would mirror the situation in Taiwo v Olaigbe and others  UK SC 31, where domestic workers were denied their race discrimination claim.
And what of an employer’s handling of the matter? In the Byron case, a letter was posted on Twitter the following day, apologising to the public and customers for any distress and upset and reminding the protestors/public of the company’s obligation to comply with the request of the Immigration Service. Not one word of the letter made reference to their remaining employees. It neither acknowledged their distress, nor attempted to reassure them that they could continue to have faith in their employer.
Maybe an opportunity was missed to do some internal PR and possibly that was all that was required to stave off claims. It remains to be seen whether any of the staff will take action. The question of whether there were any grounds for suspecting a non-EU national employee who the immigration service were not interested in deporting because their immigration status was regular, would come to the fore. How much of the “grounds” rest on stereotypes concerning the national or ethnic group to which the ones not taken belong?
Simple steps can be taken by employers in difficult situations to calm the fears and the anger of a staff body who feels betrayed and wary of their employer. Honesty, openness (if possible) and reassurance will all go a long way towards avoiding any claims and re-booting the relationship with any of those who feel worried.
The offer of an opportunity to discuss the matter with a manager, a referral to a counselling service if appropriate, or a meeting with any recognised Trade Union. These are simple, cheap and quick steps which an employer can take, which could save them a lot of time, money and management stress.
Employers should be reminded that as well as considering the PR to the media and public, they need to look after those left in their business, who will continue to be the face of the company to the paying public. If they are looked after, any bad publicity will soon be forgotten by customers receiving a good burger and good service from Byron staff.
Cloisters has significant expertise in advising and representing organisations and individuals in all aspects of equality and discrimination as well as employment law.