Mr Baker, a Jamaican national who has the right to live and work in the UK, started working as a bus driver for Abellio in July 2012. After the company became aware at the beginning of 2015 that another employee did not have the correct documentation in terms of the right to work, it carried out an audit which identified Mr Baker.
Although the company accepted that he had the right to live and work in the UK, it suspended him without pay and told him that he could not return to work until he produced the requisite proof that the company required under section 15 of the Immigration, Asylum and Nationality Act 2006. When he explained that he could not afford to obtain it, the company lent him £350 which he subsequently spent on food and bills.
The company then dismissed him “by reason of illegality” within the meaning of section 98(2)(d) of the Employment Rights Act (ERA) 1996. Mr Baker claimed unfair dismissal as well as unlawful deduction of wages during the period he was suspended.
Under section 15(1) of the Immigration, Asylum and Nationality Act 2006, employers are liable to pay a financial penalty if they employ someone who is subject to immigration control and who is not legally entitled to work in the UK.
Section 25 provides that a person is subject to immigration control if under the Immigration Act 1971 they require leave to enter or remain in the UK. Where there is a breach of section 15(1) employers may be excused from a penalty if they obtain certain documents from the employee.
Section 98(2)(d) ERA states that an employer can dismiss an employee if they would be in contravention of a statute to continue to employ them.
The tribunal held that the reason for the dismissal was that the employer could not continue to employ Mr Baker without contravening their obligations under the Immigration, Asylum and Nationality Act 2006 to obtain specific documentary proof that he had the right to work in the UK. The tribunal judge also held that if she was wrong about that then, in the alternative, Mr Baker’s dismissal was for “some other substantial reason” under section 98(1)(b) ERA.
Mr Baker (who was representing himself) then withdrew his claim for unlawful deduction from wages and the tribunal therefore dismissed this as well.
The EAT upheld Mr Baker’s appeal, holding that, as he was not subject to immigration control, section 15(1) did not apply to him. Even if it had applied, section 15(3) did not impose a requirement on an employer to obtain certain documents. It just provided an “excuse” from a penalty if they obtain certain documents from the employee.
The tribunal was therefore wrong to hold that the reason for the dismissal fell within section 98(2)(d) ERA. However, it could be a fair dismissal for some other substantial reason if the company had a genuine but mistaken belief that employing Mr Baker was illegal. The EAT therefore remitted this to a differently constituted tribunal to decide.
As for the deduction from wages claim, the EAT held that this related to the period of suspension for alleged illegality. As Mr Baker withdrew on this basis, which was erroneous, this was one of those cases where the tribunal could exercise its discretion under the tribunal rules not to dismiss the claim in the interests of justice. As such Mr Baker’s unlawful deduction from wages claim was also remitted to a new tribunal.
This case is a clear reminder to employers that in order to dismiss on grounds of a statutory ban under section 98(2)(d) ERA, the employer must show that by continuing to employ the employee there has in fact been a contravention of a statutory enactment.