The law says that an employee who has the right to work in the UK because they are married to a national from the European Economic Area does not have to produce evidence of it. In Badara v Pulse Healthcare Ltd, the Employment Appeal Tribunal (EAT) confirmed that the tribunal was wrong to conclude that a claimant with the right to work under the relevant legislation could be required by his employer to produce evidence of it before allowing him to work.
Mr Badara, a Nigerian national, had the right to work in the UK because of his wife’s status as an EEA (European Economic Area) national under the Free Movement European Directive 2004 and the related provisions of the Immigration (European Economic Area) Regulations 2006.
As such, he was issued with a UK residence card on 20 January 2010 for a five-year period which he did not apply to extend until the afternoon of the expiry date. His employer then refused to provide him with work from that point because according to Home Office ECS (Employer Checking Services) checks which they carried out, he did not have the right to work. Although Mr Badara received a certificate confirming his application dated 9 March 2015, the Home Office checks continued to come back negative. He finally received a card confirming a permanent right of residence from 16 October 2015. His employer terminated his contract on 17 November.
Mr Badara brought claims for unlawful deduction from wages as well as direct and indirect discrimination on the grounds of race and/or nationality. His employer argued that, although he had a right to work as the spouse of an EEA national resident in the UK, they had the right to reasonably require him to produce evidence of that right in the form of positive ECS checks. Otherwise they were liable to pay a penalty of up to £20,000 under the Immigration, Asylum and Nationality Act 2006. In addition, he was in breach of clause 8.1 of his contract which required him to produce evidence of his eligibility to work.
The tribunal held that, although Mr Badara did in fact have the right to work, it was not unreasonable for his employer to have relied on the results of the ECS checks. Firstly, there were the potential penalties which the company could have been liable to pay and, secondly, there was a clear contractual clause requiring him to produce evidence of eligibility.
It therefore concluded that it was reasonable not to provide Mr Badara with work because of doubts about his immigration status. As he only provided clear documentation of his eligibility to work in October 2015, no wages were due to him until 16 October. However, they were payable from that date until 17 November.
As for his claims of discrimination, the tribunal held that the reason that the company refused to provide him with work had nothing to do with his race but was because of the negative ECS checks.
Overturning the tribunal decision, the EAT held that it had been wrong to distinguish the EAT decision in the case of Okuoimose v City Facilities Management Ltd. This made clear that the provisions of the 2006 Act were irrelevant if the employee had a right to work under the directive and the EEA Regulations. Likewise, the tribunal was wrong to fail to take account of Home Office guidance which said something similar.
As the decision in Okuoimose and the Home Office guidance were relevant to the clause 8.1 issue and to the justification defence in the claim of indirect discrimination, the EAT remitted these to the same tribunal for reconsideration. However, it dismissed the claim of direct discrimination on the basis that the EAT could see no reason why (even if it had taken into account the Okuoimose case and the Home Office guidance) the tribunal might have concluded that the reason for the company’s actions was anything other than its concern to avoid the penalties.
The decision is another good example of the Employment Appeal Tribunal underlining the importance of recognising a person’s legal right to work in the UK and emphasising the employer’s obligation to properly inform themselves of the legal position, before denying work to a worker.