Labour & European Law Review Weekly Issue 249 22 December 2011
The law requires employers to make certain checks to ensure their employees are not working illegally. In Okuoimose v City Facilities, the Employment Appeal Tribunal (EAT) said that even if a company has a reasonable belief that an employee is working illegally, that is not a defence to a claim for unlawful deductions of wages if the contract turns out to be legal.
Ms Okuoimose was a Nigerian citizen, married to a Spanish national, who worked as a cleaner for City Facilities. Her passport had a Home Office stamp allowing her right of residence as a family member of an EEA national.
The company suspended her without pay on July 8 and asked her for evidence of her eligiblilty to work. She said she had applied for the permit to be renewed, but the UK Border Agency (UKBA) told the company it had no record of her application and that it would be liable to pay a civil penalty if she worked illegally.
The company dismissed Ms Okuoimose on 20 August on the grounds of illegality. She produced a letter from the UKBA dated 16 August 2011 which said that she would be treated as a family member of a legally resident EEA national and free to live and work in the UK until her application was decided. On receipt of the letter the company reinstated her.
She claimed unlawful deductions from wages for the period of her suspension (July 8 to August 15) under section 13 of the Employment Rights Act.
The Tribunal held that Ms Okuoimose’s contract was illegal during the period of suspension. In doing so, it took into account the fact that she had failed to produce a residence card as evidence she was entitled to work.
The judge concluded that as she had lost the right to work in the UK during the period of her suspension, her contract was unlawful and she could not therefore make a claim under the ERA.
The EAT, however, disagreed. It said that Ms Okuiomose had, throughout her period of residence, a right to live and work in the UK and the letter of 16 August simply provided “retrospective recognition” of those rights.
In any event, the EAT ruled that her right to work was not dependent on any letters from the UKBA , as she already had that right by virtue of her status as the “family member” of an EU national under article 23 of directive 2004/38.
Nor were her rights dependent on having a residence card since the Secretary of State must issue a card in order to comply with Article 25 (which provides that possession of a card is not a pre-condition of a person exercising their right to live and work in a member state).
In light of Ms Okuoismose’s right to live and work in the UK under EU and domestic law, the Tribunal judge had erroneously taken into account whether the company behaved or thought it had behaved reasonably and whether there would be a civil penalty. These were irrelevant factors.
This case shows that where an employee has, as a matter of law, a right to live and work in the UK an employer cannot demand they provide proof of residency in the hope that failure to provide such proof will somehow justify dismissal for illegality. The EAT judge recognised the difficulty this might cause some employers but written evidence was irrelevant where the person had a legal right to live and work in the UK.