Employer’s reasonable and genuine belief can be sufficient for SOSR dismissal

In Nayak v Royal Mail Group, the EAT upheld the tribunal’s decision that an employer’s genuine and reasonable belief that an employee was no longer permitted to work in the UK was sufficient to show that he had been dismissed for some other substantial reason (SOSR).

It is Royal Mail’s policy to conduct employee immigration checks every six months where visa outcomes are pending.  Mr Nayak worked under a number of visas throughout his employment at Royal Mail (RM) and, upon expiry of his visa in 2010, applied for a Tier 4 (General) student migrant visa.  Whilst this was originally refused, he successfully appealed and his application was passed to the Home Office for consideration and processing.

Mr Nayak’s situation meant that he was subject to RM’s immigration check policy.  However, when asked to provide proof of his right to work in the UK on three occasions between August 2012 and February 2013, he failed to cooperate with RM’s requests.  Further enquiries were made of him between December 2013 and May 2014 and he was told that the right to work could only last whilst his visa application remained pending.  Given that his application had been made more than four years previously, and in the absence of any evidence of his immigration status, RM could not simply assume that it remained pending.  Mr Nayak was advised that his failure to provide the requisite evidence may result in his dismissal and, when he did not do so, was dismissed.  His appeal was unsuccessful and he brought a claim for unfair dismissal.

The claim was dismissed both at first instance (by the tribunal) and on appeal.  The EAT upheld the tribunal’s decision that an employer’s genuine and reasonable belief that an employee was no longer permitted to work in the UK was sufficient to show that he had been dismissed for SOSR.  There was adequate evidence that RM had attempted to establish Mr Nayak’s immigration status over a number of years and he had continually failed to cooperate in the process.

The case demonstrates that a dismissal for SOSR can be justified by the employer’s genuine and reasonable belief.  This is in contrast to a statutory restriction dismissal (which is another potentially fair ground for dismissal) where an employer’s actual knowledge is required.