Immigration status 





It is unlawful to employ someone who does not have the right to work in the UK. Doing so would render the employer liable to a large fine. Employers can avoid the penalty if they can show that they correctly checked immigration documentation before employing the job applicant (see page 67, Chapter 3). 



Where an employee has the right to work in the UK but cannot prove it, it is not against the law for the employer to continue to employ them. As a result, the employer cannot carry out a fair dismissal on the basis that their continued employment would “[contravene] a legal duty or restriction” (Baker v Abellio London Limited [2017] UKEAT/0250/16/LA). 


The dismissal might be fair if the employer can satisfy the tribunal that there was a “substantial reason” justifying the dismissal (section 98(1) ERA 96, see below). The dismissal of someone who was entitled to work in the UK but who lacked the documentation to prove it will only be fair if the employer carried out a proper investigation and took all reasonable steps to help the employee to establish their correct immigration status, including corresponding with the immigration authorities (Baker v Abellio London Limited [2017] UKEAT/0250/16/LA). Where information from the Home Office is unclear, employers should not simply accept it. Instead they should ask for more clarity before deciding to dismiss (Ssekisonge v Barts Health NHS Trust [2017] UKEAT/0133/16/LA). An appeal must be offered, or else the dismissal will be unfair. In Afzal v East London Pizza t/a Dominos Pizza [2018] UKEAT/0265/17/DA, the EAT said that routinely providing a right to appeal in these situations can help to avoid injustice.