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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Baker v. Abellio London Ltd [2017] UKEAT 0250_16_0510 (5 October 2017) URL: https://www.bailii.org/uk/cases/UKEAT/2017/0250_16_0510.html Cite as: [2017] UKEAT 250_16_510, [2017] UKEAT 0250_16_0510 |
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At the Tribunal | |
Before
THE HONOURABLE MRS JUSTICE SLADE DBE
(SITTING ALONE)
![]() | APPELLANT |
![]() ![]() ![]() ![]() |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR CHRISTOPHER MILSOM (of Counsel) Bar Pro Bono Unit |
For the Respondent | MS ALICE MAYHEW (of Counsel) Instructed by: Backhouse Jones Solicitors The Printworks Hey Road Clitheroe Lancashire BB7 9WD |
SUMMARY
UNFAIR DISMISSAL - Reason for dismissal including substantial other reason
UNFAIR DISMISSAL - Reasonableness of dismissal
PRACTICE AND PROCEDURE - Withdrawal
The Employment Judge erred in holding that the employer was correct to consider that it was obliged by section 15 of the Immigration, Asylum and Nationality Act 2006 to hold that it was unlawful to employ someone who, although he had the right to work and reside in the UK, did not provide the employer with documents other than a passport to prove that right. Section 15 did not apply to the Claimant as he was not subject to immigration control within the meaning of section 25. In any event, the reference in section 15(3) to seeking documents from an employee provides the employer excusal from a penalty. It does not impose an obligation on the employer to obtain these documents.
The decision that the employer had established that the dismissal of the Claimant for failing to provide such documentation fell within Employment Rights Act 1996 section 98(2)(d) was set aside. Bouchaala v
Trusthouse Forte Hotels Ltd [1980] ICR 721 applied. The Employment Tribunal did not err in holding that dismissal because of a genuine but mistaken belief that employment of the Claimant was illegal fell with Employment Rights Act section 98(1)(b). Hounslow
London
Borough Council
v
Klusova [2008] ICR 396 applied. The decision that the dismissal was fair was set aside. The Employment Judge erred in dismissing the claim for deduction from wages. The dismissal of a claim following a withdrawal is a two-stage process. A party withdraws a claim under ET Rule 51. A judicial decision is required under Rule 52 to dismiss a withdrawn claim. Refusal to do so will be rare but where, as here, the only basis for withholding pay was obviously erroneous and irrational, an Employment Judge, properly directing themselves in law, would have held that applying Rule 52(b) it was not in the interests of justice to dismiss the withdrawn claim. Campbell
v
OCS Group UK Ltd UKEAT/0188/16 applied. The issues of fairness of the dismissal and the deduction from wages claim were remitted to a differently constituted Employment Tribunal.
THE HONOURABLE MRS JUSTICE SLADE DBE
Outline Facts
"I have been advised by the Home Office that whilst you do have the right to reside and work in the United Kingdom, unfortunately your current documents do not provideAbellio,
your current employer, with a statutory excuse to allow you to work for our Company under the Immigration, Asylum and Nationality Act 2006."
The Claimant was told that he must complete a No Time Limit application and submit it to the relevant authority with his passport.
"26. … because of his fundamental misunderstanding of the difference between having the right to work and having proof of the right to work as required by the current legislation, he failed to understand the seriousness of his predicament and the company's predicament."
"You were informed at the meeting on the 22nd May that we have been advised by the Home Office that whilst you do have the right to reside and work in the United Kingdom, unfortunately your current documents do not provideAbellio,
your current employer, with a statutory excuse to allow you to work for our Company under the Immigration, Asylum and Nationality Act 2006."
He continued:
"It is likely that if you do not bring with you the required paper work that allows you the right to work your employment withAbellio
will be terminated with immediate effect."
"… He [that is the Claimant] has also sought confirmation from the Home Office and has been assured that he has the right to stay and work in the United Kingdom. In addition, since his lastvisit
to us, we understand that
Abellio
has received confirmation from the Home Office that he has the right to live and work in the UK, but that because he lacks the correct documentation, you remain unwilling to allow him to return to work. …"
"As you know, you attended a meeting on the 12th May with Nicola Hayward, HR Business Partner who advised you that whilst you have the right to reside and work in the United Kingdom, your current documents do not provideAbellio,
your current employer, with a statutory excuse to allow you to work for our Company under the Immigration, Asylum and Nationality Act 2006.
It was pointed out to you at the meeting on the 12th May that if you complete the NTL (No Time Limit) application form and submit this along with your new passport to the relevant authority, and once you have received a letter acknowledging receipt of your application,Abellio
can undertake a check to confirm the application is in progress, which in turn will provide us with the required time-limited statutory excuse (6 months) to allow you to work until your biometric residence permit is received. …"
Mr Batchelor continued:
"Taking all this into account, my decision is to terminate your employment as you are not entitled to work in the United Kingdom and you have failed to attend the meeting scheduled for 3rd July 2015 with myself. I can only assume you do not have the documents required by law to work in the UK as you have failed to produce them.
Due to the seriousness of this and given that it is a requirement by law to have the necessary documentation to work which you have failed to provide, your employment is terminated on today's date by reason of [illegality]."
"As an employer we have a responsibility to ensure that our employees have the right to work in the UK and we are expected to have full documentation on file to show that the required checks have been carried out.
This is a legal requirement [placed] on employers by UK immigration law.
Whilst we have evidence that you have the right to work and stay in the UK, you haven't provided us with the required paperwork that would provide the company with a 'statutory excuse' to keep you employed, and you still don't have this.
In conclusion, I find the decision to dismiss you was correct. Your appeal is therefore unsuccessful and you remain dismissed."
The Decision of the Employment Judge
"39. … considerable sympathy for the claimant who has clearly misunderstood the law as it applies to him and as a result he has not complied with his employer's requests. It is a complicated concept that even if you have the legal right to work, an employer is legally obliged to obtain proof of that right to work and that proof must be in the format required by the current legislation."
"40. For example, where someone is British, having been born here and lived here their entire lives will have the right to work here. However, in accordance with the Code of Practice, without a birth certificate or passport an employer would not be able to comply with the legislation imposed upon it because the employee would not be able to prove that they had the right to work. A British person without either of those documents would have to apply for them in order to get or keep their job. If an employer employed a British person without having seen their passport or birth certificate then they could be illegally employing someone and could be fined up to £20,000 and potentially have criminal liability.
41. As the claimant is not British, but Jamaican, his passport is not, under the current legislation, sufficient evidence that he can work, nor is his birth certificate. It is not in dispute that he has the right of abode as set out in the Immigration Act 1971.
42. However the government Code of Practice dictates that he has to also provide evidence of his status in the form of an endorsement in his passport e.g. a stamp or the No Time Limit form to prove he can work. (Document 6, List A, Code of Guidance). If the respondent or any employer does not obtain that evidence from their employee then they could be fined up to £20,000 and/or face criminal liability. There are no allowances made or exceptions to that rule for someone who is lawfully in the UK under the 1971 Act as the claimant is."
"45. I find that the employer has established that the reason for the dismissal was s98(2A(d)) ERA 1996, namely that his employer could not continue to employ him without contravening its obligations under the Immigration and Asylum Act 2006 to obtain specific documentary proof that the claimant had the right to work in the UK. In accordance with that legislation, if they had continued to employ him then they would have been potentially liable for a substantial fine or criminal prosecution.
46. Before dismissing for that reason, the respondent investigated its obligations and the claimant's immigration status. They requested guidance from the Home Office and they gave the claimant several opportunities to demonstrate what he was doing to obtain the relevant proof of his right to work.
47. I conclude that they did follow a fair process throughout. They held several meetings and remained in regular contact with the claimant. They explained, bothverbally
and in writing, the importance of obtaining the relevant proof and the legal obligations they had to comply with. …
49. Their decision to dismiss fell within the range of reasonable responses given that he had been given a significant period of time to obtain the relevant documents and had been given funds to obtain them. …
50. In these circumstances I consider that the respondent's decision to dismiss by reason of legality falls within the range of reasonable responses for an employer in all the circumstances. They had given him the opportunity to continue working, they had loaned him the money to obtain the necessary proof, they have explained the process to him and he refused to comply with their requests and showed no sign that he would comply any time soon. They had a positive legal obligation to obtain that evidence before they could continue to lawfully employ him and so I consider that their decision fell within the range of reasonable responses.
51. If I am wrong in that then I find that the respondent fairly dismissed for some other substantial reason namely that he claimant refused to obtain the relevant evidence to prove that he could work. The claimant was given ample time and support to apply for the relevant document and failed to do so. He demonstrated at the appeal hearing and before the tribunal today that he did not think he had to and could not afford to obtain the relevant proof and so the tribunal finds it was within the range of reasonable responses to dismiss the claimant for failing to provide the documents."
Grounds of Appeal
Ground 1
"(2) A reason falls within this subsection if it -
…
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment."
The enactment relied upon by the Respondent and by the Employment Judge was section 15 of the Immigration, Asylum and Nationality Act 2006 ("IANA"). The Employment Judge set out section 15 of the IANA 2006, which provides as follows in material part:
"15. Penalty
(1) It is contrary to this section to employ an adult subject to immigration control if -
(a) he has not been granted leave to enter or remain in the United Kingdom, or
(b) his leave to enter or remain in the United Kingdom -
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing him from accepting the employment.
(2) The Secretary of State may give an employer who acts contrary to this section a notice requiring him to pay a penalty of a specified amount not exceeding the prescribed maximum.
(3) An employer is excused from paying a penalty if he shows that he complied with any prescribed requirements in relation to the employment."
"25. Interpretation
In sections 15 to 24 -
(a) "adult" means a person who has attained the age of 16,
…
(c) a person is subject to immigration control if under the Immigration Act 1971 he requires leave to enter or remain in the United Kingdom, …"
Ground 1 - Discussion and Conclusion
Ground 2
Ground 2 - Discussion and Conclusion
Ground 3
Ground 3 - Discussion and Conclusion
Ground 4
Ground 4 - Discussion and Conclusion
"51. End of claim
Where a claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the respondent may make for a costs, preparation time or wasted costs order.
52. Dismissal following withdrawal
Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless -
(a) the claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or
(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice."
(1) the fairness of the dismissal under Employment Rights Act 1996 section 98(4), it having been established that the reason for dismissal falls within section 98(1)(b); and
(2) the claim for deduction from wages.