Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
Employees with two years’ continued service have the statutory right not to be unfairly dismissed. For a dismissal to be fair the employer must establish that the reason/principal reason for the employee's dismissal was one of the five potentially fair reasons for dismissal. These are:
- capability or qualifications
- breach of a statutory duty or restriction
- and "some other substantial reason"(SOSR) of a kind such as to justify the dismissal of the employee holding that position.
The Employment Tribunal must then decide if the employer acted reasonably in terminating the employee’s employment for that reason. This is well known territory under the Employment Rights Act 1996 (ERA 1996).
In order to establish that the fair reason was breach of a statutory duty or restriction, it is also necessary for the employer to establish that the employee ‘could not’, in fact, ‘continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under an enactment.’ It is not sufficient for the employer to have had a reasonable belief that the employee’s continued employment would have contravened a statutory restriction. However, the termination of employment for such a reasonable, though mistaken, belief may be a potentially fair dismissal for SOSR.
It is also worth bearing in mind that if an employee applies for continued leave to remain prior to the expiry of their current visa, they will continue to have the right to remain in the UK under the terms of their old visa once it has expired, provided their application has not been decided, withdrawn and/or an appeal remains outstanding in respect of a refusal.
Mr Nayak began employment with Royal Mail on 7 January 2008 initially holding a visa that expired on 15 April 2009. It was accepted that Royal Mail carried out the relevant document checks prior to the commencement of his employment. The issue, however, was that copies of the original documentation checked by them had not been retained on file. Mr Nayak was subsequently granted another visa that expired on 1 December 2010 and before expiry of this date he applied for a third type of visa. This application was initially refused but following a successful appeal to the Immigration Tribunal, his application was passed to the Home Office for consideration and processing.
Where an employee’s visa application outcome is pending, Royal Mail’s policy was to carry out employee immigration checks on a six-monthly basis. Royal Mail wrote to the Home Office in relation to Mr Nayak’s right to work in the UK but did not receive any confirmation that he had the right to remain. Royal Mail also wrote to Mr Nayak on many occasions asking him to provide updated proof of his right to work in the UK. He did not respond to any of these invitations. They explained to Mr Nayak that as it had been over four years since his original application, it was not safe to assume that it remained pending and undetermined. He was warned that failure to provide evidence of his right to remain in the UK might result in his dismissal. A meeting was subsequently held in which his employment was terminated on 9 May 2014 for his failure to provide such evidence. He appealed; his dismissal was upheld and he claimed unfair dismissal.
The Employment Tribunal held that Mr Nayak’s dismissal was both substantively and procedurally fair on the ground of SOSR and the EAT upheld this decision.
EAT held that the Employment Tribunal were entitled to conclude that there was sufficient evidence to support Royal Mail’s claim that it had a genuine, and reasonable, belief that there was a significant risk that Mr Nayak no longer had the right to work in the UK. EAT’s decision was made on the basis of:
- the various enquiries made by Royal Mail of the Home Office before dismissal;
- Royal Mail’s inability to obtain up-to-date information from the Home Office of Mr Nayak’s immigration status;
- Royal Mail’s repeated requests of Mr Nayak over a considerable period of time; and
- Mr Nayak’s persistent failure to co-operate with Royal Mail by refusing to contact the Home Office himself.
This case serves as a useful reminder that it is not necessary for an employer to actually prove that an employee is no longer permitted to work in the UK in order to justify dismissal. It may be sufficient for an employer who makes reasonable enquiry to have a genuine and reasonable doubt that their employee is still entitled to work in the UK, and to fairly dismiss on this basis.
Finally, it is noteworthy that Royal Mail’s policy of checking the immigration status of employees with limited leave to remain in the UK every six months (irrespective of whether they had a statutory defence) was considered by EAT to be reasonable and responsible.
For more information
For more advice on disciplinary and dismissal processes, including investigations, please contact our team on 0121 212 7494.
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