Search

How can we help?

Icon

Failing to evidence right to work is not an excuse to dismiss an employee

In Baker v Abellio London Ltd, the EAT overturned the ET’s original finding of a fair dismissal for illegality. The ET had accepted that a Jamaican national with the right to live and work in the UK was fairly dismissed after his employer had suspended, and eventually dismissed him, after failing to provide documentary evidence of his right to work.

The EAT held that the ET had erred in law. As Mr Baker was not subject to immigration controls, there was no requirement to do a right to work check under the Immigration, Asylum and Nationality Act. Abellio could therefore not establish illegality as a potentially fair reason for dismissal.

The EAT held that the ET had erred in law.

However, the EAT considered Abellio may have been justified in dismissing Mr Baker for “some other substantial reason” if it genuinely believed that it was illegal to continue to employ Mr Baker, even if this belief was in error. The case has been returned to the ET for reconsideration.

This case demonstrates the difficult position employers can be faced with, as they need to avoid unfair dismissals but also need to be cautious in continuing to employ individuals without a right to work check (where this is required) as this can result in a hefty £20,000 fine.

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.

Author profile

Monica Atwal

Managing Partner

View profile

+44 118 960 4605

About this article

Read, listen and watch our latest insights

art
  • 29 April 2026
  • Privacy and Data Protection

UK Data Protection – what’s new?

Having come into force on 19 June 2025, it comes as no surprise that we are now seeing the effects of the Data (Use and Access) Act 2025 (‘DUAA’). This article highlights a few of DUAA’s fundamental reforms, delves into one in particular, and examines how this will impact the recruitment sphere.

art
  • 29 April 2026
  • Employment

Employment Rights Act: Changing key contract terms will be harder from January 2027

The Employment Rights Act 2025 (“ERA 2025”) introduces a new regime that restricts how employers can change certain core contractual terms, with the key provisions now expected to commence on 1 January 2027.

art
  • 28 April 2026
  • Immigration

Proposed expansion of right to work checks from 1 October 2026: what employers need to know

The Home Office has published a consultation on a draft Code of Practice addressing how employers can avoid unlawful discrimination while preventing illegal working. The draft indicates a planned expansion of right to work (RTW) check obligations to take effect from 1 October 2026.

Pub
  • 27 April 2026
  • Corporate and M&A

Quarterly Insights: Key Corporate & Commercial Topics – Q2 2026

Join Stuart Mullins and Emma Docking as they explore key corporate and commercial topics, including SME growth and exit strategies for 2026, EMI schemes for employee incentives, and the importance of drag along and tag along rights.

art
  • 22 April 2026
  • Commercial Real Estate

Historic rent reviews: A warning for tenants

We have been asked whether a landlord is able to operate historic rent reviews. 

art
  • 14 April 2026
  • Employment

Updates to Vento Bands 2026: Injury to feelings awards

For discrimination and detriment cases, compensation can also cover non-financial losses, which, in most cases, will include an injury to feelings award.