12 January, 2018
The immediate answer in almost every organisation would be yes. S15 of the Immigration, Asylum and Nationality Act 2006 makes it unlawful for an employer to employ an adult who is subject to immigration control. The penalties include civil and criminal sanctions even if the employer knew or had reasonable cause to believe that they did not have the appropriate immigration status. However, under s15 (3) there is a statutory excuse from the penalty if the employer can show that it undertook certain documentary checks.
In the case of Baker v Abellio London (2017), Mr Baker was a Jamaican national who was a bus driver. Mr Baker was not subject to immigration control and had the right to live and work in the UK. His employer had requested further documentary evidence of this right and when this was not provided Mr Baker was suspended without pay and ultimately dismissed.
Initially the Employment Tribunal held that the dismissal was fair, however this decision has been subsequently overturned by the EAT. Whilst it is a potentially a fair reason to dismiss an employee if their continued employment would be illegal, you must be certain that it is actually illegal for the dismissal to be fair under the statutory restriction. If it later turns out that the employment was legal then the dismissal would not have been fair.
Nevertheless, this is not to say that you shouldn't dismiss if you have genuine concerns that the continued employment of that employee would be illegal. If this is the case you should ensure that a reasonable investigation has been carried out and that all other checks are exhausted before considering to dismiss. A dismissal in these circumstances may fall under Some Other Substantial Reason (SOSR) rather than the statutory restriction.
Our advice would be to ensure that careful checks are carried out prior to the appointment of all prospective employees and if for some reason suspicions arise later, you must ensure that reasonable investigations are carried out before dismissal is considered. Carrying out checks on all employees will also evade claims of discrimination by ensuring that not merely those people who appear to be of non-British descent are investigated.
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