Employees returning to work after furlough leave
As many employers now look to bring staff back from furlough leave, we consider some of the salient issues that employers will need to consider.Read more
This has included imposing obligations on employers when you seek to engage the services of a member of staff, to ensure that their entitlement to work in the UK and an obligation to regularly keep a check on this.
This obligation extends further than just employees, to workers and the self-employed. However, given that employees have the most protections in employment law, it is them who we will focus on for the purposes of this knowledge.
It is a well-established principle that if an employee ceases to entitlement to work in the UK, you would be entitled to dismiss them for the potentially fair reason for illegality. This is the case even where they have two years’ service and could bring a claim of unfair dismissal. You would need to ensure that you followed a fair procedure.
However, often it is not that cut and dry. What happens if you have a suspicion that your member of staff no longer has the right to work in the UK, but have no evidence of this? As an employer, you will often only have limited access to information and have to rely on what your staff member tells you.
As you will no doubt be aware, in order to dismiss an employee who has two years’ service you have to have a fair reason and follow a fair procedure. There are five potentially fair reasons for dismissal as follows:
1 Capability or qualifications;
4 Illegality or statutory restriction; or
5 Some other substantial reason (SOSR).
The final category, SOSR, is the ‘catch-all’ category, which can include a number of different scenarios.
If an employer discovers that their member of staff no longer legally has the entitlement to work in the UK the potentially fair reason in play will be illegality. This will mean that any subsequent dismissal (which ought to be actioned swiftly) would fall under that potentially fair reason.
In order to avoid a claim of unfair dismissal, the employer, of course, must also follow a fair process.
But, what about the situation when you have reason to suspect that an employee no longer has the right to work in the UK, but no firm proof of this?
If you, as an employer, continue to employ members of staff who do not have the right to work in the UK, there can be various sanctions for this including heavy fines and even, in the worst case, imprisonment. On the other hand, employers will want to avoid claims for unfair dismissal from unhappy employees if they act too swiftly without the required evidence.
The case of Nayak v Royal Mail Limited UK EATS/0011/15 has provided some useful guidance on this particular point.
In this case, the EAT considered whether a Tribunal was correct to conclude that an employee was fairly dismissed because his employer’s belief was that he was no longer permitted to work in the UK.
It was decided that, in order to dismiss for the potentially fair reason of illegality, an employer must establish that to continue employment would actually contravene a statutory restriction.
It is not sufficient for the employer to have a reasonable belief that they are in contravention. In short, there must be an actual element of illegality to the continued employment.
However, SOSR is the catch-all category and can include many circumstances. In this case, the Employment Appeal Tribunal upheld the Employment Tribunal’s decision that an employer’s genuine and reasonable belief that an employee was no longer permitted to work in the UK was sufficient to show that the dismissal for the potentially fair reason of SOSR.
The key to the EAT’s decision was the evidence available and the steps the employer had gone to in order to attempt to determine whether the employee was still entitled to work in the UK or not. In this particular case, the employer had undergone an investigation and made repeated requests of the employee for further information in relation to his Visa. The employee had failed to cooperate with these requests.
If you have ever been in this situation you will know that the Home Office will not provide you, as an employer, with information in relation to a particular employee’s status where an appeal is outstanding. Whilst they can provide guidance this is not a definitive answer, and so would not give you enough to dismiss for illegality.
What was key here was the process that was followed. Therefore if you suspect that an employee no longer has the right to work in the UK the process will be especially important.
Essentially, it is important that you carry out a full investigation. This will mean directly with the employee themselves and also any other steps that you can take in order to attempt to ascertain the facts as to whether that person has the entitlement to work in the UK or not.
Whilst this case does not necessarily change the law, what it does do is provide reassuring guidance for employers who may face this situation. It means that you do not have to wait until you have a definitive answer in relation to immigration status before you make a decision.
If you are faced with a situation like this it is important that you first ask yourself the question – Do you know for sure that this employee is no longer entitled to work in the UK? If the answer is yes then the appropriate way to proceed is under the potentially fair reason of illegality. You must act fast in order to avoid civil and possible criminal penalties.
If the answer is no then it would be appropriate for you to commence a SOSR process. In this process investigation is key and you want to take all reasonable steps in order to ascertain from the employee and elsewhere, as much information as you can about their immigration status. Once you have completed your investigation it is up to you as an employer whether you form a reasonable and genuine belief that this employee is no longer has the entitlement to work in the UK. This will be fact specific and if you face the situation we would suggest that you take legal advice.
This is a heartening assurance to employers who often face a difficult decision in such instances.
There are clear obligations on you by the state in order not to employ people illegally, and these can sometimes clash with your obligations to that employee – this case provides useful guidance and helps to reconcile those conflicting interests.
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