Two recent cases of the Employment Appeal Tribunal provide further guidance for employers on the legal implications of dismissing illegal migrant workers.
Can illegal workers pursue discrimination claims?
The first case, Allen v. Hounga and Another, looked at whether illegal workers can pursue discrimination claims against their employer.
This case involved a Nigerian lady who was employed by a couple to work as their live-in housekeeper in the UK. In order to obtain a visa, at the couple's instigation, she provided false information (including a false name).
After her visa expired she remained in the UK illegally and continued to work for the them. When she was eventually dismissed she raised claims of unfair dismissal and race discrimination.
It is an established principle that if a contract of employment is illegal (for example, if the employee entered the UK to work in breach of immigration law), that employee may be prevented from relying on any contractual and statutory rights.
As a matter of public policy it has long been the case that employees working under an illegal contract of employment cannot pursue an unfair dismissal claim. In this case that principle was upheld on the basis that, to allow the Claimant to pursue her claim of unfair dismissal, would enforce the illegality.
That same illegality did not, however, prevent the employee from pursuing a race discrimination claim. It was held that a previous case, in which the employee lied about his immigration status to obtain employment and was then barred from pursuing a discrimination claim, did not establish a general principle that illegal workers cannot bring discrimination claims. The difference in that case was that the employer was innocent and did not know that the employee was working illegally.
What does this mean for employers?
It remains the case that employees working under illegal contracts of employment cannot pursue unfair dismissal claims.
In terms of discrimination claims, the Tribunal drew a distinction between a situation where the employee knew he was illegally working in the UK but the employer did not and the situation where both parties had colluded to create an illegal employment relationship. This suggests that only where an employer is unaware of the illegality will the employee be barred from pursuing a discrimination claim. The approach taken by the Courts is likely to turn on the facts of each case.
This case also underlines the importance of employers carrying out appropriate "right to work checks" on all employees, without making assumptions as to their immigration status. Such checks remove the risk of illegality on the basis of immigration issues and any consequent ambiguity that may arise.
Is it reasonable to dismiss an employee with uncertain immigration status?
The second case, Kurumuth v. NHS Trust North Middlesex University Hospital, considered whether it was reasonable for an employer to dismiss an employee with questionable immigration status.
This case involved a Mauritian lady who entered the UK with a work permit. Her work permit expired and she was refused permission to remain in the UK. She appealed against that decision and her appeal remained outstanding when she took up employment with her employer. Throughout her employment her employer continued to investigate her immigration status in order to confirm her entitlement to work in the UK. Neither the employee or the UK Border Agency were able to provide a satisfactory response. The employer subsequently dismissed her and she claimed unfair dismissal.
Whilst the employee's dismissal was found to be procedurally unfair, it was held that it was not substantively unfair. Whether or not the employee was permitted to work in the UK was a matter for the UK Border Agency. Irrespective of that, the employer had reasonable grounds for dismissing the employee in light of the genuine belief that she was not entitled to work in the UK.
What does this mean for employers?
The decision will provide some comfort for employers as it suggests that it is reasonable for employers to take a cautious approach with a view to avoiding penalties of up to £10,000 for employing an illegal worker. Provided a fair procedure is followed, the employer should be able to defend such a dismissal. It is important, however, to avoid making snap decisions. This case highlighted that the Tribunal will expect an employer to have carried out a reasonable investigation before taking the decision to dismiss.
This should serve as a further reminder of the importance of carrying out "right to work checks" on all employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
