The right to work in the UK continues to be a serious concern
for employers as penalties for employing those who do not have the
right to work are ramped up and the issue remains firmly on the
Government's agenda. Brexit is likely to make the issue even
more prominent. Two cases in 2016 – Nayak v Royal Mail
Group and Baker v Abellio give employers some
reassurance that if their procedures are robust, fair and
reasonable the tribunals and courts will support them in dismissing
employees who cannot clearly show a right to work in the UK.
In the case of Nayak v Royal Mail Group Ltd the
Scottish Appeal Tribunal upheld an employment tribunal's
decision that Mr Nayak was fairly dismissed for 'some other
substantial reason' because his employer had a genuine and
reasonably-held belief that he was no longer entitled to work in
The tribunal had relied on four uncontradicted pieces of
enquiries Royal Mail had made of the Home Office prior to
dismissing Mr Nayak;
Royal Mail's inability to obtain up-to-date information
about Mr Nayak's immigration status from the Home Office;
the repeated requests Royal Mail made of Mr Nayak over a much
longer period than their own policy required; and
Mr Nayak's persistent failure to cooperate with Royal
Mail's enquiry by refusing to contact the Home Office himself
with a request for confirmation of the position, to which the Home
Office would have been under a duty to respond.
The EAT agreed with the tribunal that all this evidence clearly
supported a genuine belief on Royal Mail's part. Mr Nayak's
conduct was a particularly significant feature in the development
of Royal Mail's belief that his immigration status may have
changed, given that it would have plainly been in his own interest
to cooperate with the requests for information.
Similar issues arose in the employment tribunal case Baker v
Abellio. During routine right to work checks Abellio asked Mr
Baker, who was born in Jamaica but has lived in the UK since
childhood, to provide evidence of his right to work in the UK.
Whilst Mr Baker has the right of abode in the UK, his Jamaican
passport had expired and he had no other evidence of his right to
work. Abellio lent Ł350 to Mr Baker to cover the cost of
obtaining a Jamaican passport with an endorsement confirming his
right to work in the UK. Mr Baker applied for a passport, but not
the endorsement. The Home Office told Abellio that the passport
alone, without an endorsement, was not sufficient evidence of the
right to work.
Abellio wrote to Mr Baker to ask him to obtain the endorsement
but he did not, nor did he attend a meeting with Abellio to discuss
the situation although he knew dismissal was a possibility. Abellio
then dismissed Mr Baker for failing to prove his right to work in
the UK. Mr Baker appealed unsuccessfully and then brought a
The tribunal was sympathetic to Mr Baker but endorsed
Abellio's insistence that he provide evidence of his
immigration status, despite his undisputed legal right to be in the
UK. It considered that Abellio had no option in the circumstances
and noted in particular that it had investigated Mr Baker's
immigration status; explained verbally and in writing to him what
evidence he had to produce; warned him of the risk of dismissal;
provided him with a loan to cover the costs; given him
opportunities to obtain proof; and allowed him to appeal against
The two cases deal with a not uncommon scenario in which the
employer is caught between the requirements of the right to work
legislation and the insistence of the employee that they are
entitled to live and work in the UK. Individuals who have lived in
the UK all their lives pose a particularly hard problem for an
employer. The Abellio case in particular provides a checklist for
dealing with this type of situation in a way which controls the
risk of an adverse finding in the employment tribunal.
Employers should also be conscious of the distinction between
dismissing on the basis of a reasonable belief that someone is not
entitled to work in the UK , where the basis for dismissal is
'some other substantial reason' and dismissing because of a
statutory prohibition. In the former case it is enough for the
employer to hold a reasonable belief, based on all the information
in front of it at the time it decides to dismiss. In the latter the
employer must actually know that the employee has no right to work
in the UK. That can be a high hurdle to surmount, particularly
where the facts of the employee's status are complex or
communications from the Home Office are not completely clear.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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