Employers need to stay on the right side of the immigration rules. A failure to carry out the right to work document checks on employees can result in a penalty of up to £20,000 per employee. There is a defence if you can show that you carried out certain document checks.
In Baker v Abellio London, a Jamaican bus driver with the right to live and work in the UK didn’t produce all of the correct documents to his employer to show that he had the right to work. His employer suspended him without pay until he could provide his passport and visa. It lent him the money to get the correct documents and checked the position with the Home Office. In the end, he was dismissed for ‘illegality.’ Because the bus company didn’t have copies of the passport and visa, it couldn’t rely on any defence to a £20,000 fine and it didn’t want to continue employing him. It mistakenly thought it was illegal to continue to employ him (it wasn’t – it just carried a risk of a fine if there were no copies of documents on file).
The Employment Appeal Tribunal confirmed that there is no strict legal requirement on an employer to obtain those documents, although if it has them it has a defence to any later penalty if the employee is illegally working. So the employer had been wrong to believe that it was illegal to continue employing Mr Baker. However, the dismissal could still be fair in these circumstances because of the risk of a fine, rather than because it was inherently illegal to employ the individual. The EAT sent the case back to the tribunal to consider whether dismissal for that reason was fair or not.
This case does not mean that you shouldn’t carry out right to work checks or insist that your employees provide all of the relevant documents. The only way you can rely on the legal defence later, if you need to, is if you have conducted the full right to work document checks.