Human resources at a click

Failing to evidence right to work is not an excuse to dismiss an employee

office_chairs_meeting_coffee_table

In Baker v Abellio London Ltd, the EAT overturned the ET’s original finding of a fair dismissal for illegality. The ET had accepted that a Jamaican national with the right to live and work in the UK was fairly dismissed after his employer had suspended, and eventually dismissed him, after failing to provide documentary evidence of his right to work.

The EAT held that the ET had erred in law. As Mr Baker was not subject to immigration controls, there was no requirement to do a right to work check under the Immigration, Asylum and Nationality Act. Abellio could therefore not establish illegality as a potentially fair reason for dismissal.

The EAT held that the ET had erred in law.

However, the EAT considered Abellio may have been justified in dismissing Mr Baker for “some other substantial reason” if it genuinely believed that it was illegal to continue to employ Mr Baker, even if this belief was in error. The case has been returned to the ET for reconsideration.

This case demonstrates the difficult position employers can be faced with, as they need to avoid unfair dismissals but also need to be cautious in continuing to employ individuals without a right to work check (where this is required) as this can result in a hefty £20,000 fine.

Clarkslegal’s employment lawyers are here to help. For further information or if you have any questions, please do not hesitate to get in touch with our employment lawyers.

Disclaimer This information is for guidance purposes only and should not be regarded as a substitute for taking professional and legal advice. Please refer to the full General Notices on our website.
Monica Atwal
Monica Atwal
Managing Partner

Related Articles

The Home Office has reported a record number of sponsor licence revocations over the past year, as part of its...

Meeting the UK spouse visa financial requirement under Appendix FM can be one of the most complex parts of applying...

From 22 July 2025, eligible Irish citizens who have been resident in the UK for five years can now register...

Related Resources

Right to work checks: who is an employee? Factsheet

This factsheet will help you conduct checks on employees’ rights to work. Employers have a duty to help prevent illegal...

Key Personnel factsheet

This factsheet provides information for Key Personnel. Introduction As a Sponsor, you are required to give certain responsibilities to members...

Immigration Skills Charge factsheet

This factsheet provides essential information regarding the Immigration Skills Charge. Introduction The Immigration Skills Charge (ISC) came into force in...

Human resources at a click