Dismissing an employee not legally entitled to work in the UK

legal_updates

Employment Rights Act 1996.

Author: Kiril Moskovchuk
Published:
Reading time: 2 minutes

This article is 3 years old.

Read our disclaimer keyboard_arrow_down

This website content is intended as a general guide to law as it applies to the motor trade. Lawgistics has taken every effort to ensure that the contents are as accurate and up to date as at the date of first publication.

The laws and opinions expressed within this website may be varied as the law develops. As such we cannot accept liability for or the consequence of, any change of law, or official guidelines since publication or any misuse of the information provided.

The opinions in this website are based upon the experience of the authors and it must be recognised that only the courts and recognised tribunals can interpret the law with authority.

Examples given within the website are based on the experience of the authors and centre upon issues that commonly give rise to disputes. Each situation in practice will be different and may comprise several points commented upon.

If you have any doubt about the correct legal position you should seek further legal advice from Lawgistics or a suitably qualified solicitor. We cannot accept liability for your failure to take professional advice where it should reasonably be sought by a prudent person.

All characters are fictitious and should not be taken as referring to any person living or dead.

Use of this website shall be considered acceptance of the terms of the disclaimer presented above.

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.

Kiril Moskovchuk

Legal Advisor

Read more by this author

Getting in touch

You can contact us via the form or you can call us on 01480 455500.