Labour & European Law Review Weekly Issue 289 04 October 2012
Under section 123 of the Employment Rights Act 1996, tribunals can make awards of compensation for loss of earnings following a dismissal “insofar as that loss is attributable to action taken by the employer.” In Kings Castle Church v Okukusie, the Employment Appeal Tribunal (EAT) said that the tribunal was wrong to award compensation beyond the date that the claimant was entitled to work in the UK.
Mr Okukusie worked initially as a student volunteer at the Kings Castle Church and subsequently as a part time salaried employee and associate pastor.
In September 2005 the church wrote to the immigration agency supporting his application for leave to remain in the UK and in October 2006 he and his family were granted further leave to remain until October 2009.
The church provided him with another letter of support in September 2009 but his application to remain in the UK was turned down by the UK Border Agency (UKBA) in a letter dated 19 January 2010. That letter also stated he could stay in the country while he appealed.
In a reply to an inquiry from his employer for an update on his work permit situation on 3 February, however, Mr Okukusie just said that the agency had acknowledged notification of his application.
He was dismissed in February 2010 because of his uncertain immigration status and his appeal against dismissal was rejected a month later. Mr Okukusie lodged a claim for unfair dismissal.
The tribunal concluded that Mr Okukusie was dismissed because he had given the church misleading information about his immigration status.
However, it concluded that the dismissal was unfair because the church acted unreasonably by failing to find out whether its fears about his immigration status were well founded. It also said that the church should have warned him that he would be dismissed if he did not give them his immigration documents.
The tribunal awarded compensation up to the date of his dismissal and a further six months’ loss of salary. The church appealed on the basis that Mr Okukusie had no right to remain in the UK from 11 May 2010 onwards and the tribunal should not therefore have awarded compensation beyond that date.
The EAT criticised the tribunal for failing to find out for sure whether Mr Okukusie had the right to stay beyond mid-May.
This was particularly surprising as it knew he had given his employer misleading information about the contents of the 19 January letter and had also failed to produce another letter dated 18 May 2010 from UKBA, despite having been ordered by another judge to do so. This said his appeal had been refused and he had no right to remain in the UK after 10 May 2010.
It concluded that the tribunal was wrong to award Mr Okuksie compensation on the assumption he could continue working in the UK when in fact he did not have permission.
It therefore set aside the original award of compensation and substituted an award of loss of earnings up to 10 May 2010.