The decision in Baker v Abellio London Ltd ET/2302684/2015 has further demonstrated the impact of the Right to Work checks under the Immigration, Asylum and Nationality Act 2006 which has been amended by section 34 of the Immigration Act 2016 act. In this particular case, it was held that employers can dismiss employees who cannot prove their Right to Work in the UK. Since the introduction of the Right to Work checks, employers have been forced request for Immigration documents from potential employees, which confirm their status in the UK. A failure to do so is likely to result in employers being liable to face financial penalties.Right to Work checks can be conducted by LEXVISA Solicitors
Right to Work check explored in Baker v Abellio London Ltd ET/2302684/2015
This very important Employment Tribunal case addresses the significance of carrying out Right to Work checks and the consequences for Employers to be found to have unfairly dismissed an employee where proper Right to Work checks had not been done under the Immigration Act 2014. This particular case was in relation to a claim for an unfair dismal of an employee that arrived in the UK as a child with the Right to Abode in the UK. The employee failed to produce documentary evidence in accordance with List A and B under the regulations demonstrating his lawful status in the UK. The employee argued that he had submitted an expired passport in attempt to prove this lawful residence in the UK but the employer refused to accept an expired passport as it was not on the list of acceptable documents found in List A or B.
The employer requested the employee to apply for a new passport and have his Right to Abode transferred to his new passport. The tribunal held it was clear the employer had acted reasonably as he had given the employee numerous opportunities to obtain a new passport. The employer had also loaned the employee £350 in order assist him with his difficulties. The employee did not take any action to obtain the necessary evidence required and as a resulted was dismissed by the employer.
The Employment Tribunal held that there was no unfair dismissal as the employer had given the employee ample time and opportunity to obtain the immigration documents required under the Immigration Act 2016.
Right to Work check under Immigration Act 2016
Prior to the Immigration Act 2016, individuals with the Right to Abode could apply to work in the UK without employers requesting immigration documents confirming their status in the UK. However, since July 2016 employers have to conduct mandatory Right to Work checks or could be liable to face financial penalties.
We have previously written about the mandatory Right to Work checks but to summarise; employers must ensure all their overseas employees provide immigration documents which confirm their right to reside in the UK lawfully, without limitations to work. In some instance, employee’s work capacity may be limited (i.e. students on Tier 4 visas are only permitted to work 20 hours per week).
Employers should note Section 34 of the Immigration act states:
A person who is guilty of an offence under subsection (1) is liable on summary conviction—
(a) in England and Wales, to imprisonment for a term not exceeding 51 weeks or a fine, or both,
(b) in Scotland or Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale, or both.
Employers should note they may be exposed to fines in the region of £20,000 per illegal worker if they are found guilty of an offence under the Immigration Act 2016.
Legal Advice on Right to Work checks under Immigration Act 2016
Our team of experienced and professionally qualified solicitors and barristers will be able to guide you through the process step by step and limit the possibility of failure by complying with the strict letter of the law. Please always call us for a telephone case assessment even if you wish to consider other advisers. If you wish to consider your options, please call our Immigration Team so we can assess your matter and if necessary advise you of the next steps you should take in a consultation.
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We can ensure that you remain compliant with your visa conditions and will be able to demonstrate your eligibility for an extension visa or possibly indefinite leave to remain. Get in touch with our business immigration lawyers now on 02071830570. You can also reach us via our contact form.