Buddy says:  The dismissal of an employee owing to the unlawfulness of their employment under immigrations laws is a potentially fair reason for dismissal.  This is because a dismissal can be fair if an employee can no longer be employed without contravening a statutory restriction (in this case, the immigration laws).  Even if you do not think that the statutory dismissal and disciplinary procedures apply in your case, the best practice is to follow the procedures in case there is a mistake as to the applicable reason for dismissal.

Employer information:  The recent case of Klusova v Hounslow London Borough Council dealt with dismissals over immigration status. In this case the employer dismissed the employee as they believed she did not have leave to remain in the country, and hence it was unlawful to continue to employ her.  As the statutory dismissal and disciplinary procedures do not apply to dismissals stemming from a statutory restriction on employing that person (e.g. where immigration laws prevent employment) the Council did not follow the procedures.  The employee did indeed have an application ongoing that extended her leave to work in the United Kingdom and made it lawful for her to be employed, so she brought an unfair dismissal case against the Council.

The Court of Appeal stated that although there were flaws in the procedure that the Council had undergone to establish her immigration status, there was still a genuine belief in the unlawfulness of her continued employment. There was therefore, a potentially fair reason for dismissal, being that the Council had a mistaken but genuine belief that they could no longer lawfully employ her.  However, this meant the dismissal was not by virtue of a statutory restriction, so the Council's failure to follow the applicable statutory procedure rendered the dismissal automatically unfair in any event, so the claim was remitted to the tribunal for a remedies hearing.

This case shows that a genuine but mistaken belief, as occurred in this case, could potentially be a fair reason for dismissal.  Importantly, it also makes a good argument for employers to follow the statutory procedures even in cases where they do not think they could apply, just in case there is a mistake in the applicable reason for dismissal.