It is of course unlawful for an employer to employ someone in the UK who does not have the right to work in the UK, and it would be potentially fair to dismiss an employee who loses their right to work in the UK. But what happens when an employer genuinely believes that an employee has lost the right to work in the UK, but has not got the evidence to prove the immigration status either way? This was the situation in the recent Employment Appeal Tribunal (EAT) case of Nayak v Royal Mail (2015).
The facts of the case were a bit complicated, but can be summarised as follows. Mr Nayak started work for Royal Mail in January 2008. At that time he held a visa which expired in April 2009. He was then issued with a post study visa which expired in December 2010. Prior to the expiry of this second visa Mr Nayak applied to the Home Office for a student migrant visa which would have allowed him to continue to work. His initial application was rejected, but he was successful in an appeal to the Immigration Tribunal in May 2011, which passed his application back to the Home Office.
Royal Mail had a policy that in situations where an employee’s visa application was pending, they would carry out employee immigration checks every six months. As part of this policy they wrote to the Home Office in March 2012 to enquire about Mr Nayak’s status, and they were informed that he did have the right to work as he was subject to an outstanding appeal. This satisfied them for the next six months, but they then wrote to Mr Nayak in August 2012, January 2013 and February 2013 asking him to provide updated proof of his right to work in the UK.
Mr Nayak did not respond to any of these letters. He did write to the Home Office in April 2012, but later said he never received a response. In May 2013 Royal Mail again wrote to the Home Office and were told that because Mr Nayak commenced employment prior to immigration rule changes which occurred in February 2008, no further checks were required, provided that document checks had been carried out when the employment commenced, and these were still retained by Royal Mail. Unfortunately, no such document checks had been retained. Royal Mail then made further enquiries of Mr Nayak between December 2013 and May 2014 and it was explained to him that he would only retain the right to work whilst his visa application was pending. It was now four years since the original application had been made, so Royal Mail told Mr Nayak that he had to provide them with evidence of his immigration status, and warned him that if he failed to do so he may be dismissed. A meeting then took place with Mr Nayak in May 2014 and he failed to produce any documents to confirm his right to work in the UK. The decision was then taken to dismiss Mr Nayak.
Mr Nayak brought a claim in the Employment Tribunal claiming unfair dismissal. Royal Mail defended the claim stating that the dismissal was fair. In all cases of unfair dismissal the employer has to show a potentially fair reason for dismissal, and these reasons are set out in legislation. The two which Royal Mail relied on were that to continue to employ Mr Nayak would have been a breach of a statutory restriction, or alternatively that the dismissal was for some other substantial reason justifying dismissal (SOSR). In order for a dismissal to be fair as a breach of a statutory enactment, the employer has to show that there was an actual breach, and Royal Mail were of course unable to do this. However, the Employment Tribunal did hold that the dismissal was fair as being SOSR.
Mr Nayak appealed to the EAT. His appeal was dismissed. The EAT said that it was well established that an employer’s reasonably held belief can amount to SOSR provided that the employer has reasonable evidence to support that belief. In this case they had made enquiries of the Home Office and failed to get a firm answer form them as to Mr Nayak’s immigration status, and had made repeated requests to Mr Nayak which he had largely ignored. In the circumstances, the EAT upheld the Tribunal’s decision that Royal Mail had acted reasonably and found that Royal Mail did hold a genuine belief that Mr Nayak did not have the right to work in the UK.
The facts of this case are very specific to this particular case, but the case is an important reminder that the employer does not necessarily have to prove that an employee is guilty, but must have a genuine belief in the guilt and have made reasonable investigation to justify that belief. In this case the case was about immigration status, but the same principles apply to misconduct cases and to other SOSR situations.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.