Employment Law Case Update: Baker v Abellio London Ltd

The Employment Tribunal held that an employee was fairly dismissed after failing to produce evidence of his right to work in the UK when his employer ran checks on its workforce’s immigration status.

Mr Baker was born in Jamaica but has lived in the UK since childhood and has the right to live indefinitely in the UK. However, when his Jamaican passport expired he had no other evidence of his right to work.

Abellio London Ltd lent him £350 to obtain a valid Jamaican passport with an endorsement in the passport confirming his right to work in the UK.

Mr Baker applied for a passport, but not the endorsement. The Home Office advised that the passport alone, without an endorsement, was not sufficient evidence of the right to work.

Abellio London Ltd wrote to Mr Baker asking him to obtain the endorsement as evidence however Mr Baker neither provided the endorsement, nor attended a meeting with the employer to discuss the situation, including the risk of dismissal.

Without that evidence, Abellio London Ltd had no option but to dismiss Mr Baker, despite his legal right to be in the UK.

It was held that Abellio London Ltd had followed a satisfactory procedure by investigating Mr Baker’s immigration status; explaining verbally and in writing what evidence he had to produce; warning him of the risk of dismissal, providing a loan to cover the costs; giving him opportunities to get proof; and allowing him to appeal against his dismissal.

The Employment Tribunal stated that employers must obtain evidence of their employees’ right to stay in the UK otherwise they “could be fined up to £20,000 and/or face criminal liability. There are no allowances made…for someone who is lawfully in the UK.”

During the investigation it is important to notify employees of the evidence they need to produce and help them obtain the evidence (such as a loan). The employer must give the employee opportunities to obtain the evidence and explain the consequences such as risk of dismissal if the employee does not do so.

If the employer has provided help and opportunities but the evidence is still not provided then it appears an employee can be fairly dismissed.

This article is from our weekly Employment Law Newsletter published on 1/12/2016.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.