May 31, 2016

Fair Dismissal Where No Proof of Right to Work in U.K.

In Nayak v Royal Mail Group Ltd UKEATS/0011/15, the Employment Appeal Tribunal (EAT) considered whether the dismissal of an employee who had failed to provide evidence of his right to work in the U.K. was fair.

Mr Nayek was employed under a visa which expired in December 2010. Before this visa’s expiry, he applied for a new work visa which was referred to the Home Office for consideration. In March 2012, the Home Office confirmed that Mr Nayak could work in the U.K. whilst his application was pending. Royal Mail had a policy of checking the immigration status of its employees with work visas every six months and, between August 2012 and May 2014, sought confirmation from Mr Nayak of his immigration status. He failed to provide such confirmation nor did he seek it from the Home Office. In the circumstances, Royal Mail dismissed him following an internal procedure. He brought a claim of unfair dismissal.

The EAT found that his dismissal was fair both substantively and procedurally. It was substantively fair for “some other substantial reason” because at the time of the dismissal Royal Mail held a genuine and reasonable belief that he had no right to work in the U.K. There were many facts to support this belief, including Mr Nayak’s persistent refusal to cooperate. The dismissal was procedurally fair because Mr Nayak was given ample opportunity to provide evidence of his right to work.

While this case will be welcomed by employers, they should always ensure they do everything reasonably required to try to determine an employee’s right to work status before dismissing.

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