Search

How can we help?

Icon

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.

 

Caroline Lendrum

Associate

View profile

+44 118 960 4669

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.

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.

About this article

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

Caroline Lendrum

Associate

View profile

+44 118 960 4669

About this article

Read, listen and watch our latest insights

art
  • 28 February 2024
  • Commercial Real Estate

Hidden risks in serviced office agreements

This is usually a fully furnished and equipped office space that is managed by a facility management company and made available for short-term or long-term rentals to businesses, varying from one week to a year, or even longer.

art
  • 27 February 2024
  • Employment

Changing Attitudes to Menopause

We have set out some answers to the frequently asked questions that employers ask when considering how to support a menopausal employee.

art
  • 22 February 2024
  • Employment

Time to take the heat off menopausal women

On 22 February 2024, the EHRC released guidance and resources for employers designed to help employers understand their legal obligations in relation to supporting workers experiencing menopausal symptoms.

Pub
  • 22 February 2024
  • Employment

Talking Employment Law: What to do if you’re at risk of redundancy

In this podcast, Harry Berryman and Rebecca Dowle, members of the employment team, will talk through the steps that need to be taken for a redundancy to be fair and the range of criteria that can be used when determining which employees will be made redundant.

art
  • 21 February 2024
  • Immigration

FAQs Partner Visa UK

Discover the UK Spouse Visa: eligibility, finances, relationship criteria, and the latest updates in 2024 for a successful application.

art
  • 19 February 2024
  • Privacy and Data Protection

The role of Data Protection Officers in ensuring compliance

How many of us receive marketing calls for products and services we did not sign up for?