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Right To Work In The UK – Employer’s Dismissal Was Fair

In the recent case of Nayak v Royal Mail Ltd, the Employment Appeal Tribunal (EAT) has held that an employer's genuine and reasonable belief that an employee was no longer permitted to work in the UK was sufficient to show that a subsequent dismissal was both substantively and procedurally fair. 

It is unlawful to employ an individual who does not have the right to work in the UK or who is working in breach of their conditions of stay in the UK. There are different regimes in respect of illegal working, depending on when the particular employee’s employment commenced. 

Where an employee makes an application for continued leave to remain prior to the expiry of their existing visa, then they will continue to have the right to remain in the UK under the terms of the old visa once it expires, provided that the application has not been decided, withdrawn or appealed.

In Nayak v Royal Mail Ltd, the matter for the EAT to consider was whether Royal Mail had fairly dismissed one of its employees, Mr Nayak, on the grounds of his immigration status, where Royal Mail did not actually know whether Mr Nayak was working illegally.

Mr Nayak was employed by Royal Mail between 7 January 2008 and 9 May 2014, when his employment was terminated because Royal Mail believed that he no longer had the right to work in the UK.

Royal Mail's policy in circumstances where a visa application outcome was pending was to carry out employee immigration checks every 6 months. 

In March 2012, Royal Mail sought confirmation from the Home Office in relation to Mr Nayak's right to work in the UK. The Home Office confirmed that, at that time, Mr Nayak had the right to work in the UK "on the basis of an outstanding appeal". As a result of this information, Royal Mail was satisfied that it could wait six months before it made further enquiries into Mr Nayak's immigration status. On 20 August 2012, 20 January 2013 and 17 February 2013, Royal Mail wrote to Mr Nayak asking him to provide updated proof of his right to work in the UK. Mr Nayak did not respond.

Between December 2013 and May 2014, Royal Mail made more intensive enquiries of Mr Nayak in order to try to establish his immigration status. Mr Nayak was warned that failure to provide evidence of his immigration status may result in his dismissal.  The requested information was not provided and so, on 9 May 2014, Mr Nayak was dismissed. He appealed against the dismissal and was given a further 42 days to provide the requested documentation. No further information was provided by Mr Nayak in that time and so, on 8 August 2014, the decision to dismiss was upheld.

Mr Nayak brought an unfair dismissal claim. The employment tribunal dismissed the claim and held that there was sufficient evidence to conclude that a reasonable employer would not be satisfied that Mr Nayak's visa application remained pending and undetermined.

Mr Nayak appealed against the decision and the EAT dismissed the appeal. The EAT noted that it is well established that an employer's genuine belief can constitute “some other substantial reason” for dismissal under the Employment Rights Act 1996 and that, unlike dismissal in contravention of a statutory enactment, the employer's actual knowledge of the contravention is not required. Based on the evidence, the EAT found that there was sufficient evidence to support Royal Mail's genuine and reasonable belief that Mr Nayak no longer had the right to work in the UK. The EAT also considered that Royal Mail's policy of checking the immigration status of employees with limited leave to remain in the UK every six months was reasonable and responsible.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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