Illegal workers face fair dismissal

Opinion

Illegal workers face fair dismissal

Over recent years employment law has been tightened to the point that employers caught with staff who are without the right to work in the UK risk a £10,000 fine per employee caught. A serious matter. So can an employer dismiss someone where they have questions of their right to work in the UK? The short answer is 'yes'.

The point is illustrated in the case of Kurumuth v NHS Trust North Middlesex University Hospital. Here the Employment Appeals Tribunal held that it was reasonable for an employer to dismiss an employee when they had doubts over their right to work in the UK. 

Following the introduction of a new points based system for establishing entitlement to work, the employer made checks via the UK Border Agency and took legal advice. The employer formed the view that there was no evidence that the claimant had any right to work, and so dismissed her.

The employee brought a claim for unfair dismissal and because of an absence of any procedure the Employment Tribunal interestingly ruled that the dismissal was procedurally unfair and awarded her a basic award. However the dismissal was otherwise substantively fair and that the lack of procedure made no difference to the outcome and so declined to award any compensatory award.

The EAT agreed with the tribunal's decision and said that they employer was entitled to err on the side of caution and dismiss.

The case highlights the importance of conducting a reasonable investigation before reaching a decision to dismiss based upon concerns over an employee's immigration status.

This was first published in July 2011

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