Recent re-enforcement of the rules on preventing illegal working confirms the Government’s stance on getting tough on those who do not have the right to work in the UK as well as employers who employ them. It is unlawful to employ someone who does not have the right to work in the UK and so employers must implement robust checking procedures. Pressure on employers to keep on top of immigration status is high and this can sometimes lead them to make the wrong decision in haste. What should employers do to avoid fines of up to £20,000 per illegal worker?

What does an employer need to check?

UK Visas and Immigration are responsible for enforcing laws in relation to illegal workers. It publishes a list of documents that prospective employees must produce to employers as evidence of their right to work in the UK which should be checked prior to the start of employment. The particular document produced will dictate whether any follow up checks need to be done i.e. whether clearance is time limited or not.

What happens if the right expires?

Upon discovery that a right to work document is due to or has expired, employers should not be tempted to dismiss immediately; the particular circumstances may make this an unfair dismissal. Employers must act reasonably and should:

  • Contact the individual involved and tell them about your discovery;
  • Ask them if they have secured the continued right to work and if so, to forward this evidence immediately;
  • If they have not, inform them that they must immediately set about obtaining the continued right to work and that failure to do so will result in the termination of their employment. Give the employee time to obtain the evidence but employers should keep on top of this, chasing the employee where necessary;
  • Check on the individual’s status with the Home Office via the Employer Checking Service will confirm their current position;
  • Where dismissal occurs, allow the right of appeal in case that extra time yields the evidence you need.

The recent case of Baker v Abellio London resulted in fair dismissal for an employer who followed the above steps in relation to a Jamaican employee who failed to provide a current passport containing unlimited leave to remain.

What is the reason for dismissal?

There are five potentially fair reasons for dismissal, including ‘legal contravention’. This means that termination must occur because it would be unlawful to allow the employee to continue working. Using this reason for dismissal would be risky in relation to a right to work dismissal because employers would need to be able to prove the employee definitely did not have the right to work. This can be tricky and therefore a safer reason for dismissal would be ‘some other substantial reason’ i.e. that the employer had reason to believe that the individual did not have the right to work, rather than having definite proof.

The some other substantial reason route enabled a fair dismissal in the case of Klusova v London Borough of Hounslow where the employer had a genuine but mistaken belief of an employee’s illegality. Therefore, the ‘legal contravention’ reason could not have stuck.

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