The claimant, employed by the respondent as a bus driver, was a Jamaican national who enjoyed an unlimited right to live and work in the UK. After the respondent conducted a workforce audit, the claimant was asked to produce one of a list of documents, which he was unable to do. He explained that had a ‘right of abode’ and the right to work, but did not have a passport. He eventually obtained the passport, but the Home Office advised that this was not sufficient proof of the right to work in the UK. The claimant was dismissed and claimed unfair dismissal.

The ET dismissed the claim as, although the claimant had the right to work and the right of abode, the employer required proof of this and would have been liable for a fine or criminal prosecution had it continued to employ him. The EAT held that that the lower tribunal "plainly erred" in holding that the respondent was required to obtain specific documentation proving the right to work.

S.25 of the Immigration, Asylum and Nationality Act 2006 (IAN) states that a person is subject to immigration control, "if... he or she requires leave to enter or remain in the United Kingdom" and the claimant was evidently not such a person. The appeal was allowed.

Practical Lessons

The employer here was obviously concerned with protecting itself. However s.15(3) of the IAN provides employers with a statutory excuse against illegal working if it checks specified documents. The fact that the claimant didn't possess the proper documents did not automatically mean that he was working illegally. Based on the facts, it would also seem unlikely here that the employer could have shown that they had a reasonable belief that the claimant was working illegally.

Employment tribunals utilise the ‘reasonableness’ test when considering unfair dismissal but employers may consider it difficult to act "reasonably" when dealing with immigration compliance because of the risks involved. What also stands out about this case is that the claimant was asked to produce documents mid-employment rather than at application stage where repeat checks are often required. In such situations employers would be safer providing a supportive role to workers by giving time for applications and assisting with documentation where appropriate.
https://assets.publishing.service.gov.uk/media/5a0981f7ed915d0adcdf46a2/Mr_D_Baker_v_Abellio_London_Ltd_UKEAT_0250_16_LA.pdf