Brexit brings a renewed focus on the UK’s labour market and is also a good time for employers to remind themselves of their obligations of ensuring that their employees are legally entitled to work in the UK.
Employers have a statutory duty to carry out Right to Work (RtW) checks on employees and a failure to get it right can result in eye-watering fines. However, dismissing workers or refusing to employ workers based on a genuine, but incorrect, view that they have no right to work can leave employers equally exposed. The recent EAT case of Badara v Pulse Healthcare Ltd gives an example of the challenges for employers and the consequences for employees when employers get it wrong.
In this case, the claimant was a Nigerian national. As he was married to an EEA national he had a right to work in the UK. However, following the expiry of his residence card, the Respondent didn’t provide him with any further work on the basis that he hadn’t provided evidence of his right to work. The employer carried out several checks with the Home Office’s Employment Checking Service which indicated he had no right to work. As he wasn’t being given any work, the employee raised a claim against the employer for unlawful deduction from wages and indirect race discrimination.
The tribunal at first instance, held that the employer had erroneously, but genuinely, believed that Mr Badara’s right to work expired on the date his residence card expired and had relied on the Employment Checking Service (ECS). In relation to the unlawful deduction from wages claim, the tribunal found that the employer was entitled to require proof of his right to work. As for the indirect discrimination claim, the tribunal held that any substantial disadvantage from the ECS check requirement could be objectively justified on the basis that compliance with immigration controls and laws was a legitimate aim and reliance on the ECS checks was a proportionate means of achieving that aim.
Mr Badara appealed to the EAT which held that the tribunal had failed to consider previous case law and overturned the decision. An important factor not considered by the employment tribunal was that the Home Office guidance had a specific section headed ‘Additional Information’ that was relevant to employees who, like Mr Badara, had a right to work because of marriage to an EEA national. This guidance expressly stated that such persons did not have to register with the Home Office or obtain documentation issued by them.
This case highlights the difficult balance between ensuring compliance with immigration legislation and employment law. On the one hand, employing someone who does not have the right to work can result in a civil penalty of up to £20,000 per employee, while on the other hand, incorrectly interpreting immigration legislation can lead to unjustifiable termination and risk of liability.
Employers must, now more than ever, have robust RtW checks and processes in place. In order to give employers peace of mind in this tricky area, Law at Work has developed a RtW audit that will help employers identify any areas of RtW weakness and provide practical solutions. If you would like to find out more then please contact your designated Employment Solicitor or email firstname.lastname@example.org.
Finally, we will be incorporating a special ‘Spotlight’ session on RtW at our upcoming Employment Law updates. Please see our website for further details.