REWARD
Evidence, copyright, reason
NicolaMullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Badara v Pulse Healthcare Limited
The claimant was finally able to present a new card by 15 October 2015. However, following the dismissal of his claims by the original tribunal, his contract was terminated with immediate effect on 17 November 2015. As a result, he brought separate claims to a new ET for unlawful deduction of wages, as well as direct and indirect discrimination. ...automatic right to work in the UK through marriage In relation to unlawful deduction of wages, the ET held that the employee was entitled to compensation between the date he provided his new card and his date of termination, covering a period of just under five weeks. However, he was not able to receive an additional amount for the time prior to this, as he had not provided the information requested to prove his right to work, as outlined in his contract. Turning to direct discrimination, the tribunal held that although there had been unfavourable treatment in withdrawing work, the organisation believed it was acting to ensure compliance with immigration law. Although they accepted that the employee had been subjected to
indirect discrimination by relying on the ECS results when deciding whether to continue offering him work, this could be objectively justified. The employee appealed the rulings on unlawful deductions and indirect discrimination to the EAT. In forming their decision the EAT referred to the previous case of Okuoimose v City Facilities Management, where it was ruled that an individual who was a family member of an EEA national did not need to depend on documents from the Home Office to prove the right to work. As Badara also had an automatic right to work, it would have sufficed for him to produce evidence that he was a family member of an EEA national. The contractual term requiring proof of the right to work in the UK was only relevant to individuals who enter and leave the UK. This point was remitted to the ET. Regarding indirect discrimination, the EAT insisted the employee had the automatic right to work in the UK, so the ET should have applied the Okuoimose ruling and also supporting government guidance. This claim was also remitted for reconsideration. Grey v Mulberry Company Design Ltd The Court of Appeal upheld earlier rulings
The employment appeal tribunal (EAT) held that the employer was wrong to completely depend on a negative right- to-work check when deciding to withhold work and pay from Mr Badara, a Nigerian national who had previously married an European Economic Area (EEA) national living in the UK. Before commencing work for Pulse Healthcare Limited, Badara provided a valid residence card that had an expiry date of 20 January 2015. Under the terms of the contract he had to provide the organisation with evidence of his eligibility to work and inform them if there were any changes to his circumstances. As he had an automatic right to work in the UK through marriage, this did not change when the card expired. However, mistakenly believing he had lost his right to work, the employer requested that he apply for a new card and provide evidence. The series of Employer Checking Service (ECS) requests regarding the employee all came back negative, so the employer stopped providing work and pay. The employee did apply for a new card but raised a grievance, arguing that he had an automatic right to work due to his immigration status. The situation escalated to the employment tribunal (ET).
| Professional in Payroll, Pensions and Reward | March 2020 | Issue 58 44
Made with FlippingBook - Online magazine maker