Labour & European Law Review Weekly Issue 225 07 July 2011
In claims of unfair dismissal, Tribunals have to decide, among other things, if dismissal was within the range of reasonable responses open to the employer. In Kurumuth v NHS Trust North Middlesex University Hospital, the Employment Appeal Tribunal (EAT) said that it was reasonable for the hospital to sack an employee whose immigration status was unclear.
When she arrived in the UK from Mauritius in 1992, Ms Kurumuth had a permit to work. In 1997, however, she was refused further leave to remain, but appealed that decision.
She started work in the x-ray department of the hospital in 2001 as a healthcare support worker initially on the “bank”, and from 2003 as a permanent member of staff.
When her job at the hospital was made permanent, she showed her employer a letter from the Home Office saying she could continue to work until her appeal was determined. However, it never was.
Since 2008, employers have faced a civil fine of up to £10,000 for employing illegal immigrants.
Following the introduction of a new points-based system in 2008, the UK Border Agency checked her status but failed to clarify it. On 22 December 2008, it wrote to the hospital saying "…I am not therefore able to give you a precise date when Ms Kurumuth’s application will be addressed but we will look to resolve the matter as soon as circumstances permit...”.
Dissatisfied that her status had not been resolved, the hospital dismissed her at the end of January 2010 without notice, on the basis that it believed she had no right to work in the UK.
The Tribunal said that her dismissal was unfair because her employer had not followed a “proper procedure”.
Applying the principle in Polkey v AE Dayton Services, however, it reduced her compensation to nil on the basis that “she would have nothing further to say had there been a proper hearing at the investigative stage, there was nothing more that could been done, and dismissal would have occurred in any event”.
The EAT rejected Ms Kurumuth’s argument that the Tribunal should have found that she was entitled to work in the UK. That decision, it said, could only be made by the Immigration and Asylum Tribunal.
In any event, it was not necessary to decide whether she was or was not entitled to work in the UK “because what we are concerned with is whether the Respondent had reasonable grounds for dismissal in the light of its genuine belief that the Claimant was not entitled to work”.
The question was whether the hospital had taken all reasonable steps to investigate that “genuine belief”. Saying that it was required to adopt a “non-pernickety” approach, it decided that the Tribunal was correct in its analysis that, as the hospital had taken all reasonable steps to investigate the matter, dismissal was within the range of reasonable responses open to the Trust.
The hospital accepted that Ms Kurumuth was entitled to pay for the period of her suspension, plus notice pay. The EAT added that she was entitled to a week's pay for the period it would have taken to follow the disciplinary procedure properly.
Finally, it said that the Tribunal was also right to reduce her compensation to zero as there was ample evidence that she would have been dismissed even if the hospital had followed a reasonable procedure.
The decision suggests that in certain circumstances it may be reasonable for an employer to be cautious and dismiss employees without evidence of leave or a visa to avoid civil penalties of up to £10,000 for employing illegal workers.
However this will not be the same for every case and will depend very much on the facts of each case. The EAT stressed that an employer must take all reasonable steps to investigate the truth of the situation and the level of investigation and the steps required to investigate will depend on the particular circumstances.