Employers are required to be ever more conscious of the need to clearly establish that their employees have the right to work in the UK. Failure to do so leaves them open to criminal sanctions, including significant fines and the loss of a sponsorship licence.
However, issues can arise when an employer is unclear of an employees’ status at a particular time, as the case of Nayak v Royal Mail UKEATS/0011/15 shows. Mr Nayak was employed by Royal Mail in January 2008, at which time he had a valid work visa expiring in April 2009.
Prior to its expiry, he applied for and was granted a Tier 1 (post study) visa until December 2010. He then made an application for a Tier 4 (general student migrant) visa. His application was initially refused but his appeal was upheld and in May 2011 his application was passed to the Home Office for consideration.
It was understood that where an individual had an outstanding application for a visa, which had been made prior to the expiry of the previous visa, they were eligible to work under the terms of that previous visa until such time as their application was decided or withdrawn, or where there was an outstanding appeal against the decision. Royal Mail operated a policy of checking the status of all employees in this position every six months to ensure that they continued to have the right to work in the UK.
Royal Mail made enquiries in respect of Mr Nayak with the Home Office in March 2012 and were informed that he had the right to work ‘on the basis of an outstanding appeal’. They were therefore satisfied that they need do nothing further for six months, but from August 2012 they wrote to Mr Nayak on a number of occasions seeking an update on his visa application. He did not respond to any of these letters. He had written to the Home Office in April 2012 seeking an update but had not received a response, and from then on had consciously decided not to chase the matter.
From December 2013 to May 2014 Royal Mail made more intensive enquiries of Mr Nayak in order to resolve the issue of whether he was still entitled to work in the UK. He was interviewed about the matter and it was explained to him that since four years had elapsed since he had applied for his visa, it was no longer reasonable to assume that he still had an outstanding application such that he was eligible to work under the terms of his previous visa.
He was formally requested to provide evidence by way of an update letter from the Home Office and was warned that he might be dismissed if he failed to do so. Mr Nayak repeatedly referred to the fact that he was able to rely on his previous visa, but this was not considered sufficient and he was dismissed.
Mr Nayak appealed and following an appeal hearing, the manager advised that she was prepared to give him a further 42 days to provide the documentation requested. She suggested that Mr Nayak make a subject access request, under the Data Protection Act, to the Home Office. Mr Nayak decided not to make the suggested request or to contact the Home Office at all. Therefore the appeal was not upheld.
Mr Nayak brought a claim to the Employment Tribunal, arguing that his dismissal was unfair as there was no evidence that he had lost his right to work in the UK. However Royal Mail made clear that he had not been dismissed because as a matter of fact he was not eligible to work in the UK, but because there was insufficient evidence available to them at the date of dismissal, having made reasonable enquiries that he was still eligible to work in the UK. Therefore their belief that he was not eligible was reasonable.
The Employment Tribunal agreed with this argument, and noted that a reasonable employer would consider themselves unable to be satisfied that Mr Nayak’s original application remained pending and undetermined, particularly in circumstances where over a prolonged period and in the full knowledge that his continuing employment might ultimately depend on it, he resolutely refused to approach the Home Office for an update. Mr Nayak’s claim for unfair dismissal was therefore dismissed and he appealed to the Employment Appeal Tribunal but they too dismissed his appeal for substantially the same reasons.
With the Immigration Bill 2015/2016 proposing to extend the existing criminal offence of knowingly employing an illegal migrant so that it applies in circumstances when an employer has reasonable cause to believe a person is an illegal worker, this kind of an issue is likely to be of even greater relevance. Employers will need to ensure that they conduct relevant checks on a regular basis to satisfy the reasonableness test and employees will need to comply with any requests for information to the best of their ability; failure to do so may ultimately result in a fair dismissal.
Safia Tharoo, Barrister, 42 Bedford Row, London