An employer discovers that one of its employees appears not to have the right to work. What should be done? Hopefully the issue will rarely arise in practice, but when it does, it's important to understand how to balance the employment and immigration law risks.
This is part of a series on how to manage the employment law issues associated with hiring and managing migrant workers. For more information on the tensions between employment law and immigration law, including links to our other content, see The employment and immigration intersection.
Discovering an employee may not have the right to work
It may come to light that an employee who once had the right to work (RTW) in the UK may no longer continue to hold that right. For example, they may have forgotten to apply for an extension of their immigration permission before it expired, or they may not be able to provide straightforward evidence of their immigration status at the time a repeat right to work check is due. These scenarios may produce a heart-in-mouth moment for a manager or HR.
Balancing the immigration and employment risks in these situations can be challenging:
- On the one hand, immigration law requires that
all employees have the RTW for their employer in the UK. If an
employer knows or has reasonable cause to believe that an existing
employee does not have the RTW for them, or if an employee cannot
prove their ongoing right to work, continuing the employment
relationship may pose serious immigration compliance risks for the
employer. Inadvertently employing an illegal worker can result in a
civil penalty of up to £60,000, and knowledge of illegal
working may even give rise to criminal prosecution.
These immigration risks may mean that the employer in this scenario instinctively feels that they must rush to dismiss the employee. However, acting in haste may be unwise...
- Employment law says that employees have the right not to be unfairly dismissed (if they have more than two years' service). Employees also have the right not to be treated in a discriminatory way.
There is an obvious conflict here. While urgent action is needed to mitigate the (potentially serious) immigration risks, there is also a need to undertake a form of procedure to minimise the employment risks.
Investigating immigration status and dismissing for right to work reasons
Some key pointers when thinking about how to move forward:
- Investigating right to work
status. An employee may appear not to have the RTW, but
this doesn't always mean that they actually don't. A
prompt, thorough and fair investigation into the employee's
immigration status is therefore needed. This will involve a meeting
with the employee. The employee should be encouraged to provide
information that would be helpful in determining their immigration
status. The employer may use the Home Office's Employer Checking Service, in the hope that a
'Positive Verification Notice' would give the employer a
statutory excuse against liability for a civil penalty. Caution
should be exercised even if a 'Negative Verification
Notice' is received, as this can sometimes happen even when an
individual does have the RTW.
- Suspension? Suspending the employee pending
the investigation may seem like a good option to buy time, but it
won't necessarily help reduce the legal risk from an
immigration perspective. This is because illegal working
legislation looks at whether an individual is employed. They would
still be employed if they are suspended, and regardless of whether
suspension is paid or unpaid.
- Termination of employment. If the employer,
having conducted its investigation, concludes that dismissal is
unavoidable, the termination letter should include:
- A description of the investigation;
- A reference to the right to work provisions in the employment contract;
- The reason for the dismissal (taking the form of "because we believe that you do not have the right to work", rather than "because you do not have the right to work");
- Details of the notice arrangements – termination will need to be effective immediately, so the employer will either pay in lieu of notice or choose not to pay notice at all (the latter approach may give rise to a claim for wrongful dismissal);
- The right of appeal; and
- Potentially an offer of re-engagement if the employee can prove they have the right to work.
Conclusion
We recommend that full legal advice is sought on a case-by-case basis in situations where an employee's RTW is in doubt. This is because of the risk of tribunal claims, and also because an employee who seemingly does not have the right to work may, in fact, actually have it.
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.
