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Does an employee with the right of abode need to provide right to work documents?

15 November 2017

The Employment Appeal Tribunal (EAT) has confirmed that it is unfair to dismiss an employee who has the right to work in the UK because he could not provide documentary evidence of that right.

In this case, the employee was a Jamaican national who had lived in the UK since childhood. He had a Jamaican passport but it had expired. It was accepted by his employer that he had the right to work in the UK. Notwithstanding this, the employer called the Home Office who advised that his passport was insufficient to prove the right to work. The employer suspended the employee without pay and lent him £350 to get a new passport and requested that he obtain the relevant endorsement to prove his right to work. Because the employee did not obtain the required endorsement, the employer dismissed him.

The EAT pointed out that because the employee was not subject to immigration control, the requirement to obtain right to work documents did not apply and his dismissal was therefore unfair.

The EAT commented that whilst it is possible to argue a fair dismissal on grounds of Some Other Substantial Reason (SOSR) (i.e. the genuine but erroneous belief that they were restricted by law from continuing to employ), there is an expectation that there would be documentary evidence of the information that was provided to the Home Office when obtaining their view on right to work.

This case is a reminder that it won’t always be fair to dismiss an employee if they can’t prove their right to work - matters should be dealt with on a case by case basis. In addition, where seeking advice from the Home Office, be sure to obtain documentary evidence of the information you are providing to them and their response – ideally this will be via email/letter but, if this is not possible, detailed attendance notes should be taken.

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