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Employment Law

Legal guidance - compliance - software

18 APR 2016

Unfair dismissals - it's not what you know...

Unfair dismissals - it's not what you know...
Colin Godfrey
Senior Associate, Veale Wasbrough Vizards

The Employment Appeal Tribunal (EAT) upheld an Employment Tribunal's (ET) decision that an employee could be fairly dismissed if his employer reasonably believed that he no longer had the right to work in the UK - even when he did.

The facts

In Nayak v Royal Mail Ltd, the claimant was in possession of a Tier 1 (post-study) work visa and, prior to its expiry, applied for a Tier 4 (general) student visa. His application was refused but the claimant appealed.

While his appeal was being dealt with, the claimant was entitled to remain and work in the UK under the terms of his Tier 1 visa.

It was the respondent's policy to carry out six-monthly checks on the rights of employees to work in the UK whilst awaiting the outcome of their immigration appeal. This was designed to avoid the possibility that an appeal had been rejected without the employer being aware and unwittingly continuing the employment.

Between August 2012 and May 2014, the claimant was asked several times to provide an update from the Home Office in relation to his visa application, but failed to do so. The claimant himself had only written to the Home Office once, asking about the progress of his application, but received no response and did not try to contact them again.

The respondent explained that, as over four years had elapsed since the original application had been made, no assumption that remained pending and undetermined could safely be made. The respondent concluded that it had taken all reasonable steps to confirm the claimant's right to work in the UK, was not satisfied that he continued to have that right, and so dismissed him.

The claimant appealed against his dismissal and was given another opportunity to provide the documentation requested, but failed to do so and, again, made no attempt to contact the Home Office. The appeal was therefore rejected.

The claimant brought an unfair dismissal claim. He argued that at all times he remained lawfully able to work in the UK. He said that the employer's six-monthly checks went beyond what they were legally required to do.

The ET rejected the claimant's arguments. The judge described the respondent's policy to carry out six-monthly checks as 'a responsible one' and that, given the delay and lack of response from the claimant, a reasonable employer would not have been satisfied that the claimant's original application remained pending.

The EAT has now upheld the ET's decision that the claimant's dismissal was fair. Although the respondent did not know for certain that the claimant was not legally entitled to work in the UK, based on its investigations and the claimant's failure to comply with its repeated requests, it reasonably believed he was not. The dismissal therefore fell within 'some other substantial reason' (SOSR), justifying dismissal.

Best practice

This case is a good illustration that, even when an employee does have the right to work in the UK, a dismissal can still be fair for SOSR if, following a reasonable investigation, an employer reasonably concludes that an employee does not have that right.

Regularly checking the progress on an employee's outstanding appeal is advisable to ensure that they do, at all time, retain the right to work in the UK. Effectively communicating with the employee affected will be key to this.
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