REWARD INSIGHT
Illegality, trust, substitution
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decision in three cases
Baker v Abellio London Ltd ‘Statutory ban’ or ‘statutory illegality’ is one of the potentially fair reasons for dismissal where continued employment would cause the employer to break a legal duty or restriction. The difficulty with relying on this reason has been highlighted by the Employment Appeal Tribunal (EAT) as there will not be a fair dismissal where the employment does not actually break the law. The employee was a Jamaican national who had the right to live and work in the UK under the Immigration Act 1971. He was employed as a bus driver from July 2012 and, in 2015, the employer carried out an audit in to his right-to-work documentation. The employee was asked to produce one of a list of documents, such as a passport, that would provide evidence he had the right to work. The employee advised the employer that he had the right to work but didn’t have a passport because this had expired. The employee was again asked for his documentation at a meeting in February 2015 and was placed on unpaid leave until he produced this. The employer made a loan of £350 to the employee to help obtain a passport but later advised the employee that he would also have to produce visa documentation. The employee produced his new passport to human resources (HR) in
May 2015. The HR function sought advice from the Home Office and were told this was not sufficient evidence by itself. They advised the employee of this, telling him he needed to complete a ‘no time limit’ application to provide them with the statutory excuse to continue employing him. The employee did not apply for this because he knew he did not need it and also he couldn’t afford this. The employee was dismissed by reason of illegality for failing to produce documentation required by the law. An appeal against the dismissal was unsuccessful and the employee made a claim of unfair dismissal. ...dismissed by reason of illegality for failing to produce
gather documentary evidence proving their employees had the right to work in the UK. If they had continued his employment, the employer would potentially be liable for a fine or criminal prosecution. The employer had followed a fair process by obtaining guidance from the Home Office, loaning the necessary money to the employee and giving sufficient opportunity to apply for documents. In the alternative, the ET judged that the dismissal was fair under the ‘some other substantial reason’ (‘SOSR’) ground as the employee had refused to get evidence to prove he had the right to work after being given sufficient time and support to obtain this. On appeal, the EAT overturned the finding on the statutory illegality dismissal. They determined the dismissal did not fall within this ground because the employee was not subjected to immigration control as he had the right to work and live in the UK. Therefore, his continued employment would not lead to the employer breaking the law. However, the EAT decided the dismissal could fall within the SOSR ground as the employer believed they would be acting illegally if they failed to receive the documents they thought were legally required. This could amount to a substantial reason but, in cases where the belief was mistaken, a tribunal is required to assess
documentation required by the law
The employment tribunal (ET) dismissed the claim and found the employer had fairly dismissed the employee by reason of statutory illegality. The tribunal found they could not continue his employment without contravening their legal obligation to
26
| Professional in Payroll, Pensions and Reward | February 2018 | Issue 37
Made with FlippingBook flipbook maker