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When can an employee be dismissed for not providing evidence of RTW?

BY Donald MacKinnon
Employment Law & HR

In order for a dismissal to be legally fair, an employer must be able to show that the reason for the dismissal is one of the five potentially fair reasons for dismissal set out at s. 98 of the Employment Rights Act 1996 (i.e. conduct, capability, redundancy, statutory restriction or “some other substantial reason”). Perhaps the least commonly used fair reason for dismissal is statutory restriction. In the recent case of Baker v Abellio London Limited, the Employment Appeals Tribunal gave guidance to employers attempting to rely on statutory restriction as a fair reason for dismissal in relation to a failure to provide right to work documentation. 

Mr Baker was an Abellio bus driver. He is a Jamaican national who has the right to live and work in the UK. He does not require leave to enter or remain in the UK. Abellio conducted an audit on their employees to ensure that all staff had the correct documentation evidencing their right to work. Mr Baker was unable to produce any documents. Although Abellio contacted the Home Office, which confirmed that Mr Baker had the right to remain in the UK, the company dismissed him believed they were employing him illegally.

When Mr Baker raised tribunal proceedings he was initially unsuccessful, the employment tribunal finding that Abellio had established illegality as a fair reason for dismissal. The tribunal also confirmed that Mr Baker could have been dismissed fairly for “some other substantial reason”.

The EAT overturned this decision and said that, in order for an employer to rely on illegality as a potentially fair reason for dismissal, it must show that continued employment of the employee is contrary to the law. However, Abellio had not demonstrated that Mr Baker’s employment infringed a statutory rule; all they could demonstrate was that Mr Baker had not produced the correct documentation.

The EAT went on to say that the dismissal could potentially be fair under SOSR, if Abellio is able to prove that it had a genuine but mistaken belief that employing Mr Baker was illegal. This case has now been remitted to the employment tribunal to determine whether this was a fair dismissal on SOSR grounds.

This case demonstrates that, if an employer wishes to dismiss on the grounds of statutory restriction, there is a clear onus on that employer to prove that employment contravenes a statutory restriction. It also reaffirms that employers seeking to dismiss in similar circumstances should be advised to consider “some other substantial reason” as a ground for dismissal.

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