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Section 15 of the Immigration, Asylum and Nationality Act 2006 (IANA) makes it unlawful for an employer to employ an individual who is subject to immigration control (someone who requires leave to enter or remain in the UK).
Breach of this provision renders the employer liable to a civil penalty but there is a defence if the employer can show it undertook certain documentary checks.
In Baker v Abellio London Ltd Mr Baker was employed as a bus driver. He is a Jamaican national who has the right to live and work in the UK – he does not require leave to enter or remain.
Abellio checked that its employees had the correct documentation evidencing their right to work in the UK. Mr Baker was unable to produce any evidence and was suspended. Abellio gave him the opportunity to obtain the necessary documents but he failed to do so and was subsequently dismissed because of illegality. Mr Baker claimed he had been unfairly dismissed.
At first instance, the Employment Tribunal held that Abellio had established illegality as a fair reason for dismissal and Mr Baker had not been unfairly dismissed.
Mr Baker appealed to the Employment Appeal Tribunal and the EAT overturned the Tribunal’s finding that the illegality dismissal had been fair. The only relevant offence under the IANA 2006 is employing someone who is subject to immigration control, which Mr Baker was not. The IANA 2006 did not therefore apply to him. In any event, all that section 15 does is excuse the employer from paying a penalty if relevant documents have been obtained. There is no requirement to obtain those documents. Abellio had therefore been wrong to believe that it was illegal to continue employing Mr Baker.
However, the EAT upheld the Tribunal’s alternative finding that the dismissal had been for some other substantial reason “SOSR” – that Abellio had genuinely but mistakenly believed that it was illegal to continue to employ Mr Baker.
Employers should be cautious before deciding not to insist that an employee provides right to work documentation. Even if the employer believes that an individual has the right to work, and this has been confirmed by the Home Office, this will be no defence against a penalty if the information from the Home Office later proves to be wrong.
Employers in a similar situation to Abellio will need to weigh up the risk of not obtaining documentation (and therefore the statutory excuse) against the risks of dismissing the employee. If the employer decides to dismiss, it should plead SOSR whilst always bearing in mind that the decision to dismiss has to be fair in all the circumstances.