Right to work in the UK: How much can employers rely on Home Office advice?

Author: Darren Newman

Darren Newman

Consultant editor Darren Newman considers the implications of a recent case involving a Jamaican bus driver who was dismissed when he could not provide the required documentation during his employer's audit of its workforce's right to work in the UK.

The question that emerges at the end of the decision in Baker v Abellio London Ltd [2018] IRLR 186 EAT is one that feels particularly poignant in light of the unfolding Windrush scandal. Is it reasonable for an employer to trust the assessment of the Home Office and dismiss someone who they are told is not entitled to work in the UK?

The question arose in Mr Baker's case because he is a Commonwealth citizen who came to the UK as a child. There was no doubt, by the time of the tribunal case, that he was entitled to live and work in the UK, but at the time of his dismissal he did not have documentation that firmly established that. The Home Office allegedly advised the employer that it therefore needed to dismiss him, but, as the Employment Appeal Tribunal (EAT) pointed out, that was incorrect. There is no requirement for an employer to have proof of an employee's ability to work in the UK. Of course, if an employer knowingly employs someone not entitled to work here, that is an offence. An employer can also be subject to a substantial civil penalty - up to £20,000 per worker - for unwittingly employing such a person and it is here that the documentation comes in. The employer has a "statutory excuse" if it can show that it obtained appropriate documentation showing that the employee was entitled to work in the UK.

When the Asylum and Immigration Act 1996 first made employers liable for unwittingly employing people illegally, the list of documents that could be relied on was much wider than it is today. It also included easily obtainable documents - such as a P45 from a previous employer showing the employee's national insurance number. Under the current regime, the permissible documents are limited to passports, birth certificates and official documentation, usually issued by the Home Office. For someone in Mr Baker's position - not born in the UK and with a Jamaican passport - these documents may not be easy to obtain, and some involve paying a substantial fee. It is not wholly surprising that he was unable to produce a document that met the legal requirements.

However, his failure to produce documentation did not mean that it was illegal to employ him. He was not subject to immigration control and was entitled to work in the UK. The employer did not therefore need to provide a "statutory excuse" and could have continued to employ him perfectly legally. As a result, its attempt to defend his dismissal on the grounds of a "statutory ban" was rightly dismissed by the EAT. That did not mean, though, that his dismissal was unfair. A genuine but mistaken belief that an employee is not entitled to work in the UK is accepted as being "some other substantial reason" capable of justifying dismissal. That was established as long ago as 1980 with the EAT decision in Bouchaala v Trusthouse Forte Hotels Ltd [1980] ICR 721 EAT and the principle was followed more recently in the Court of Appeal decision in Klusova v London Borough of Hounslow [2007] EWCA Civ 1127 CA. These were both cases involving the employer being wrongly informed by the authorities that the employee had to be dismissed.

Ultimately what matters is whether or not, in all the circumstances, the employer has behaved reasonably in deciding to dismiss the employee. In Mr Baker's case, the EAT suggested that this would involve carefully examining the advice that the employer received - and in particular considering whether or not the employer had informed the Home Office of the relevant facts.

All of which brings us to the original question: how reasonable is it for an employer to rely on the advice of the Home Office when deciding whether or not to dismiss an employee? In the current climate it would hardly seem wise to accept such advice at face value. The Home Office is clearly capable of making mistakes and a reasonable employer would surely conduct its own enquiries into the employee's position and push back on any Home Office assessment that seemed doubtful. Ultimately, however, it would be a brave employer that continued to employ someone that the Home Office insisted could not be legally employed - at least in the absence of official documentation providing a "statutory excuse". The threat of prosecution or substantial financial penalties means that most employers will feel that they ultimately have no choice but to accept the settled view of the Home Office - and tribunals are likely to accept that such an approach is reasonable.

This means that an employer can dismiss an employee even if there is no evidence that they are working illegally - merely an absence of evidence to the contrary. This is no accident; it is clearly what the legislation intends. Indeed, the whole point of the regime is that it is up to the individual employee to demonstrate their entitlement to work - and the bar for doing so is now set considerably higher than it once was. As a result, holders of non-EU passports may face substantial obstacles in the way of obtaining the necessary documentation - especially those who came to the UK as children some decades ago. Apart from the expense and the bureaucracy, many might be concerned at the prospect of approaching the Home Office to obtain the appropriate residence permit. Given recent events, it is understandable that for many employees that would not be an attractive option. As a result, the danger is that individuals with a perfect right to live and work in the UK may be excluded from the regular workplace and driven into parts of the economy where document checks are unlikely to be carried out.