If keeping someone in employment is against the law, it would be fair to dismiss this individual. It is just plain common sense and fair reason for dismissal under s.98(2)(d) of the Employment Rights Act 1996. This fair reason is often dubbed as ‘statutory ban’.
This reason covers situations when, for example, a driver loses the driving licence or a doctor becomes disentitled to practice, but perhaps most commonly it applies to employees subject to immigration control.
The potentially contentious issue in dismissing someone no longer entitled to work in the UK is how far the employer should go to establish its employee indeed cannot work in the UK legally. What is the employee is awaiting outcomes of an application to the Home Office? How about a letter from the Home Office saying mistakenly any employment should cease whereas the employee actually can legally work? An employer may end up navigating between the Scylla of a civil penalty or criminal conviction for keeping in employ someone in contravention of the immigration rules and Charybdis of an unfair dismissal claim.
This matter was recently considered by the Employment Appeal Tribunal in Nwaki v Tube Lines Ltd case. Mr Nwaki’s application for Tier 1 visa had been rejected twice and at the time of dismissal Mr Nwaki was in the process of lodging an application for judicial review. UK Border Agency advised Tube Lines Ltd in error that Mr Nwaki had no entitlement to work in the UK. He was then dismissed as his employer was not persuaded that he could legally be in employment in the UK. Mr Nwaki brought a claim for unfair dismissal, and his claim was dismissed.
The Employment Appeal Tribunal upheld the initial decision. Whilst it was regrettable that at the time of his dismissal Mr Nwaki could be legally employed, his employer, on reasonable enquiries, was satisfied that the opposite was the case and the dismissal was fair. The Employment Appeal Tribunal commented that the dismissal would satisfy an even higher test for ‘some other substantial reason’ for dismissal.