An employer is under an obligation to satisfy itself of an employee’s right to work, and the fines for failing to do this can be substantial. In a case in the Appeal tribunals, a case has been examined where an employer wrongly required evidence of the right to work of a Jamaican employee (who is not subject to immigration control).
The employer asked for the evidence of the right to work, and the employee was not able to provide it. He was suspended without pay and eventually dismissed. The reason for the dismissal was given as “contravention of statutory enactment.” The original tribunal held this to be a fair dismissal.
The Appeal tribunal however overturned the tribunals decision ruling and decided that it was not a fair reason to dismiss in these circumstances. It ruled that there was no contravention of an enactment and so this could not be the reason. It went on to say however, that Some Other Substantial Reason (SOSR) could be used fairly even where the employer wrongly believed that a state of affairs existed where it did not.
The HR professionals out there will already know that a dismissal that could be fair, if given the wrong label, will be unfair. It’s therefore important to get this right.
The case is called Baker v Abellio London.