Two recent cases of the Employment Appeal Tribunal provide
further guidance for employers on the legal implications of
dismissing illegal migrant workers.
Can illegal workers pursue discrimination claims?
The first case, Allen v. Hounga and Another, looked at
whether illegal workers can pursue discrimination claims against
their employer.
This case involved a Nigerian lady who was employed by a couple
to work as their live-in housekeeper in the UK. In order to obtain
a visa, at the couple's instigation, she provided false
information (including a false name).
After her visa expired she remained in the UK illegally and
continued to work for the them. When she was eventually dismissed
she raised claims of unfair dismissal and race discrimination.
It is an established principle that if a contract of employment
is illegal (for example, if the employee entered the UK to work in
breach of immigration law), that employee may be prevented from
relying on any contractual and statutory rights.
As a matter of public policy it has long been the case that
employees working under an illegal contract of employment cannot
pursue an unfair dismissal claim. In this case that principle was
upheld on the basis that, to allow the Claimant to pursue her claim
of unfair dismissal, would enforce the illegality.
That same illegality did not, however, prevent the employee from
pursuing a race discrimination claim. It was held that a previous
case, in which the employee lied about his immigration status to
obtain employment and was then barred from pursuing a
discrimination claim, did not establish a general principle that
illegal workers cannot bring discrimination claims. The difference
in that case was that the employer was innocent and did not know
that the employee was working illegally.
What does this mean for employers?
It remains the case that employees working under illegal
contracts of employment cannot pursue unfair dismissal claims.
In terms of discrimination claims, the Tribunal drew a
distinction between a situation where the employee knew he was
illegally working in the UK but the employer did not and the
situation where both parties had colluded to create an illegal
employment relationship. This suggests that only where an employer
is unaware of the illegality will the employee be barred from
pursuing a discrimination claim. The approach taken by the Courts
is likely to turn on the facts of each case.
This case also underlines the importance of employers carrying
out appropriate "right to work checks" on all employees,
without making assumptions as to their immigration status. Such
checks remove the risk of illegality on the basis of immigration
issues and any consequent ambiguity that may arise.
Is it reasonable to dismiss an employee with uncertain
immigration status?
The second case, Kurumuth v. NHS Trust North Middlesex
University Hospital, considered whether it was reasonable for
an employer to dismiss an employee with questionable immigration
status.
This case involved a Mauritian lady who entered the UK with a
work permit. Her work permit expired and she was refused permission
to remain in the UK. She appealed against that decision and her
appeal remained outstanding when she took up employment with her
employer. Throughout her employment her employer continued to
investigate her immigration status in order to confirm her
entitlement to work in the UK. Neither the employee or the UK
Border Agency were able to provide a satisfactory response. The
employer subsequently dismissed her and she claimed unfair
dismissal.
Whilst the employee's dismissal was found to be procedurally
unfair, it was held that it was not substantively unfair. Whether
or not the employee was permitted to work in the UK was a matter
for the UK Border Agency. Irrespective of that, the employer had
reasonable grounds for dismissing the employee in light of the
genuine belief that she was not entitled to work in the UK.
What does this mean for employers?
The decision will provide some comfort for employers as it
suggests that it is reasonable for employers to take a cautious
approach with a view to avoiding penalties of up to £10,000
for employing an illegal worker. Provided a fair procedure is
followed, the employer should be able to defend such a dismissal.
It is important, however, to avoid making snap decisions. This case
highlighted that the Tribunal will expect an employer to have
carried out a reasonable investigation before taking the decision
to dismiss.
This should serve as a further reminder of the importance of
carrying out "right to work checks" on all employees.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
On 9 July 2012, the UK government launched its latest assault in its attempts to reduce net migration to the UK from the hundreds to the tens of thousands by 2015: an overhaul of the rules governing family migration.
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