Leave to remain

Kelly v University of Southampton

The law says that it is fair for employers to dismiss an employee if it would contravene the law to continue employing them. The Employment Appeal Tribunal (EAT) has said, however, in Kelly v University of Southampton (IDS 846) that employers cannot necessarily assume that it will always be reasonable for them to dismiss in those circumstances.

Basic facts

In January 2001 Dr Kelly (an American citizen) successfully applied for a post at Southampton University, subject to obtaining the necessary immigration approval. The Department for Education and Employment duly approved her appointment for 60 months, but the Home Office (for reasons that were never clear) only gave her a visa to stay in the UK for 48 months.

The University wrote to her in February 2001, confirming that she would be employed by the university for five years, but that “employment beyond 8 January 2005 is dependent on you gaining leave to remain and work in the United Kingdom."

As she had not managed to do so by that date, the University suspended Dr Kelly without pay on 13 January 2005 and gave her until 4 February to sort out her residency status. The University then changed its mind and dismissed her on 27th January, with effect from 8 January.

Dr Kelly claimed unfair dismissal.

Tribunal decision

The tribunal agreed with the University, saying that the reason for dismissal was a potentially fair one under section 98(2)(d) of the Employment Rights Act 1996. In other words, that Dr Kelly could not continue to work without contravening a “duty or restriction imposed by or under an enactment”. In this case, section 8(1) of the Asylum and Immigration Act 1996.

Having established the reason for dismissal, the tribunal said it was satisfied that dismissal was within a band of reasonable responses open to the University as it would have been illegal to continue to employ Dr Kelly.

Finally, it said that the statutory dismissal procedures did not apply in cases where the employer was legally obliged to terminate the employee’s employment if it would contravene the law to continue employing them.

EAT decision

The EAT, however, disagreed. It said that employers were only guilty of a criminal offence under section 8(1) of the Asylum and Immigration Act if the employee failed to satisfy the “conditions” set out in the Immigration (Restriction on Employments) Order 2004.

In this case, Dr Kelly satisfied section 3(3) as she had permission to work under the immigration rules. As a result, and irrespective of her immigration status, the University did not commit an offence under section 8(1) by continuing to employ her even though she no longer had leave to remain in the country.

It concluded that: “We do not think that the 1996 Act and the 2004 Order proceed on the basis that a permission to work ceases to be such when leave to remain lapses. If it were so … the condition in reg 3(3) would have no application. Rather we consider that Parliament did not intend to impose criminal liability on an employer … [whose] employee continues to have a valid permission to work even though leave to remain may have ceased.”

The University could not therefore rely on section 98(2)(d) as a potentially fair reason for dismissal. And although it might have been able to argue that her dismissal was potentially fair for ‘some other substantial reason’ under section 98(1) (b), it was automatically unfair under section 98A(1) as the University had failed to follow a statutory dismissal procedure.

Although it did not have to consider the issue of reasonableness, the EAT also said that employers could not necessarily assume that it would always be reasonable for them to dismiss someone because they might contravene a law. It may well be unreasonable “because the position has resulted from some past conduct or omission of the employer” or “because something can readily be done in the future to remedy the position.”