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April 4 2018

The Pitfalls of Employee Immigration Status

What can employers do if they discover a staff member's status is not what it appears? And if they do decide to dismiss an employee, to what extent may they become exposed to the possibility of an unfair dismissal claim?

In the case of Baker v Abellio London Limited, the employee was employed for three years when his employer requested documents for proof of his right to work in the UK. Mr Baker, had been working for three years when his employer (Abellio, a bus company) asked him for documents to evidence his right to work in the UK. By that time, Baker's Jamaican passport had expired, so the company lent him £350 to obtain a new one.

When he did so, Abellio, after discussion with the Home Office, told him he would need to make what is known as a ‘no time limit’ application. He refused to do this, because he said he could not afford to and there was in fact no need, because he was allowed to work here by virtue of the Immigration Act 1971.

As a result, his employment was terminated with immediate effect. Baker brought an unfair dismissal claim, but this was rejected by the employment tribunal. It held that the company could not continue to employ him without proof that he had the right to work here. To do otherwise would have exposed them to the possibility of a fine, or even prosecution.