Losing the right to work doesn’t mean losing the right to correct dismissal procedure

Employers that don’t believe an employee has the right to work in the UK still need to adhere to good employment law practice. If an employer is found to employ an individual without the right to work in the UK, the employer can be issued with financial penalties (currently up to £20,000 per individual) and even have a business closed down for a period of time (ultimately up to 12 months). As a result, many employers adopt a very conservative and risk-adverse approach when dealing with employees who do not have an unqualified right to work in the UK.

A recent case heard by the Employment Appeal Tribunal (EAT) has shown that even against the above background, employers are still obliged to adhere to good employment law practice.

The employee is from Pakistan and started working for a pizza chain in October 2009. He was a well-respected and hardworking employee, working his way up from a delivery driver to an acting assistant manager and a manager-in-training. His right to work in the UK expired on 12 August 2016. However, it could have been extended if he submitted an application for permanent residence on or before this date. The employer wrote to the employee in June 2016 and July 2016 and reminded him to submit his permanent residence application by 12 August 2016, and to show evidence of that application to his employer.

Late on 12 August 2016, the employee sent his manager an email with attachments which purported to show the permanent residence application had been made. However, the manager could not open the attachments. The employer decided that, to ensure it was not employing an illegal worker, it should dismiss him and sent him a dismissal letter the same day. The reason relied upon by the employer was ‘some other substantial reason’ – namely that the employer genuinely believed that it was legally prohibited from continuing to employ him. He was not called to a meeting prior to his dismissal and he was not given a right to appeal the decision.

The employee brought a claim for unfair dismissal, which he lost at the employment tribunal. He appealed the decision and successfully persuaded the EAT that the judge at the employment tribunal had not applied the correct law.

The EAT did state the employer was justified in dismissing the employee but was very clear that, had the employer offered the employee a right of appeal, the employee would have been able to show that he did make the permanent residence application in time and therefore had the right to work in the UK.

The EAT stated that in circumstances involving right to work, it is good practice to offer an appeal. The judge was clear that this type of case is not unusual. The judge also referred to the Home Office’s Employee Checking Service, which he acknowledged was not always up-to-date or fully informed, but that HR managers should be familiar with. Ultimately, the case shows that an employer should always offer an appeal when dismissing an employee – even in right to work cases.