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.

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.