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.
The sanctions against employers who knowingly or unknowingly employ individuals who do not have the correct immigration status to work in the UK are stringent - this can cause employers to be overly cautious when it comes to checking and documenting an employee’s immigration status.
An example of this can be found in the recent case of Mr D Baker v Abellio London Ltd.
Mr Baker, a Jamaican national, had lived in the UK since he was a child. He had a right of abode under the Immigration Act 1971 and the right to work in the UK.
Mr Baker worked as a bus driver for Abellio London Ltd from July 2012 to July 2015. In 2015, Abellio London Ltd undertook an audit of their employees to check whether they had the correct documentation for immigration purposes. It was acknowledged that Mr Baker had the right of abode and the right to work in the UK. However, the company insisted that Mr Baker still needed to produce documentation to evidence this. Mr Baker was suspended without pay until he could provide the documentation in question. Mr Baker provided his employer with his passport, but they told him it was insufficient.
Abellio London Ltd sought advice from the Home Office, and the Home Office confirmed that Mr Baker had the right to reside and work in the UK, his passport alone did not provide his employer with a statutory excuse to allow him to work for them under the Immigration, Asylum and Nationality Act 2006 (IANA).
As Mr Baker was unable to produce the documentation his employer requested, they terminated his employment.
The Employment Tribunal (ET)
Mr Baker brought a claim against Abellio London Ltd for unfair dismissal. Mr Baker argued that his dismissal was unfair as he had the right to abode and the right to work in the UK, which he did evidence. Abellio London Ltd argued that they dismissed Mr Baker as they were required by statute, section 15(3) of IANA to collect certain documents if employing foreign workers. As Mr Baker could not produce the required documents, it would have been illegal for them to continue to employ him.
The ET found in favour of the employer and confirmed that the employer was correct to consider that it was obliged by section 15 IANA to find it unlawful to employ someone, who although had the right to abode and work in the UK, did not provide the employer with documents other than his passport to prove that right.
Employment Appeal Tribunal (EAT)
Mr Baker appealed the decision of the Employment Tribunal to the EAT. The EAT found that Mr Baker was not subject to immigration control within the meaning of section 25 of IANA. Section 25 IANA states that a person is subject to immigration control if he requires leave to enter or remain in the UK, which Mr Baker did not.
As section 25 IANA did not apply, the IANA did not apply, including section 15. Even if the IANA did apply, the ET had misinterpreted the purpose and effect of section 15 IANA. Section 15 IANA provides an employer with an excusal from penalty should they be able to show that they sought documents from an employee. It does not impose an obligation on the employer to obtain these documents.
This case highlights the difficulties employers can face when they have sufficient evidence to know that the employee does have the right to work in the UK, but the evidence in their possession is insufficient for the statutory excuse under the IANA. The decision on whether to suspend, withhold wages, or dismiss, will need to be made on a case-by-case basis. However, employers should make sure to take a reasonable and proportionate approach in all circumstances.
For more information
We have advised a significant number of clients on immigration and dismissal matters. If you require assistance with your working arrangements, please get in touch with your usual contact in our Employment Team or contact Matthew Gregson. You can find out more about our employment work on our website.
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