Baker v Abellio London Limited UKEAT/0250/16/LA

Appeal against the dismissal of the Claimant's claim of unfair dismissal. Appeal allowed and remitted to a different Tribunal.

The Claimant is a Jamaican national who has lived in the United Kingdom since childhood. It was agreed before the ET and it has not been disputed that he has the right of abode under the Immigration Act 1971 ("IA"). The Respondent has always recognised that he has the right to work in the United Kingdom. Unfortunately the Claimant's current documents did not, according to the Respondent, provide them with a statutory excuse to allow him to work for them under the Immigration, Asylum and Nationality Act 2006. He was dismissed after he failed to produce the documents required of him by the Respondent. The ET found that the Respondent's decision to dismiss by reason of legality fell within the range of reasonable responses for an employer in all the circumstances. They had given him the opportunity to continue working, they had loaned him the money to obtain the necessary proof, they had explained the process to him and he refused to comply with their requests and showed no sign that he would comply any time soon. In the alternative, the ET found that the Respondent fairly dismissed for some other substantial reason namely that the Claimant refused to obtain the relevant evidence to prove that he could work. The Claimant appealed.

The EAT allowed the appeal. The Claimant was not subject to immigration control and so section 15 of the Immigration, Asylum and Nationality Act 2006 did not apply - therefore the employer was not obliged under the IANA 2006 to obtain specific documentary evidence that the Claimant had the right to work in the United Kingdom. In any event, the reference in section 15(3) to seeking documents from an employee provides the employer excusal from a penalty. It does not impose an obligation on the employer to obtain these documents.

Published: 04/12/2017 11:32

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