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Is it fair to dismiss Employees who are unable to provide documentary evidence of their right to work in the UK?

The immediate answer in everybody's mind would be yes - especially in schools where the burden for employment checks is especially high. S15 of the Immigration, Asylum and Nationality Act 2006 makes it unlawful for an employer to employ and adult who is subject to immigration control. However, under s15 (3) there is a statutory excuse from the penalty if the employer can show that it undertook certain documentary checks.

Furthermore, Keeping Children Safe in Education states at paragraph 102 that schools and colleges must verify a person's right to work in the UK by checking original documents, ensuring that they are valid in the presence of the prospective employee and keeping a record of the checks carried out and copies of documents inspected. If they are uncertain that the right exists they must carry out further checks as necessary.

In the case of Baker v Abellio London, 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 the employees and if for some reason suspicions arise later, you must ensure that reasonable investigations are carried out before dismissal is considered. Schools and Colleges must adhere to the verification requirements set out in Keeping Children Safe in Education which should highlight any issues at the outset of employment.

If you require any more information, please view our Education section on the Forbes website or contact Ruth Rule-Mullen in our Education department via email or phone on 01772 220195. Alternatively, please send any question through to Forbes Solicitors via our online Contact Form.

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