Right to work
Labour & European Law Review Weekly Issue 471 25 May 2016
When deciding whether it is fair to dismiss an employee, tribunals have to consider whether the employer acted reasonably or unreasonably in treating the reason for dismissal as a sufficient reason. In Nayak v Royal Mail Group Ltd, the Employment Appeal Tribunal (EAT) held that it was reasonable to dismiss an employee where the employer had a genuine and reasonably held belief that the employee no longer had the right to work in the UK.
Mr Nayak started working for Royal Mail in January 2008, at which point he had a valid work visa. His visa expired on 15 April 2009 and he made an application for a new visa. He was issued with a Tier 1 (post study work) visa which expired in December 2010. Prior to its expiry he applied for a Tier 4 (general student migrant) visa which was initially refused but allowed on appeal in May 2011 by the Asylum and Immigration Tribunal. His application was then passed to the Home Office for processing.
In March 2012 Royal Mail sought confirmation from the Home Office of Mr Nayak’s right to work in the UK. In a letter dated 9 March 2012, the Home Office confirmed to Royal Mail that Mr Nayak had the right to work in the UK “on the basis of an outstanding appeal”. Between August 2012 and February 2013, Royal Mail wrote to Mr Nayak asking him to provide updated proof of his right to work in the UK, but he did not respond. In the period between December 2013 and May 2014 Mr Nayak was interviewed about his failure to provide updated documentation. After an exchange of e-mails in March and April 2014 warning him that he might be dismissed if he failed to provide an updated letter, Royal Mail dismissed Mr Nayak, following a meeting on 9 May. After an appeal hearing, he was given a further 42 days to provide the documentation, but he failed to do so and the decision to dismiss was upheld on 8 August 2014.
Mr Nayak claimed that he had been unfairly dismissed on the basis that Royal Mail had the May 2011 decision of the Asylum and Immigration Tribunal and the Home Office’s letter of May 2012. For its part, Royal Mail argued that the basis for dismissal was not that he did not have the right to work in the UK but that it had insufficient evidence to reasonably conclude that he had the right to work in the UK.
The tribunal rejected his claim. It held that Royal Mail had acted reasonably, given that Mr Nayak’s original application remained pending and undetermined. This was particularly the case given that he had, over a prolonged period and in the full knowledge that his continuing employment might ultimately depend on it, resolutely refused to approach the Home Office for an update and confirmation of whether his application indeed remained pending.
The central issue, according to the EAT, was whether there was sufficient evidence of a genuine and reasonable belief on the part of Royal Mail that Mr Nayak no longer had a right to work in the UK.
The EAT found that the company could point to four uncontradicted pieces of evidence showing that it had a reasonable belief:
- the enquiries it made to the Home Office prior to dismissing him
- its inability to obtain up to date information from the Home Office of Mr Nayak’s immigration status
- the repeated requests it made to Mr Nayak over a long period to obtain the necessary information
- Mr Nayak’s persistent failure to cooperate with those requests and contact the Home Office for confirmation of his status.
These facts taken together with Royal Mail’s past experience of employees in a similar situation; the length of time that had passed since his appeal in May 2011 and dismissal; and the inability of Royal Mail to generate a response from the Home Office all supported the genuineness of the employer’s belief.
Given the detailed and comprehensive findings of fact made by the tribunal, it was entitled to conclude that the dismissal was both substantively and procedurally fair. The EAT therefore dismissed the appeal.
The case shows that an employer may successfully defend a claim for unfair dismissal for some other substantial reason if they can show that they had a genuine and reasonable belief that the employee was no longer permitted to work in the UK. The fact that the employee did not cooperate was a significant factor in this case.