Background
K, a Russian national, had been working for the Council since 2000. However, by 2005 her leave to remain in the UK had expired. The Council tried to establish whether K could continue to work for them and was told by the Home Office that since K’s leave to remain in the UK had expired she was no longer able to work here.
The Council dismissed K believing that it was unlawful to continue to employ her, although K argued that she had in fact made an application to extend her leave which was still being considered by the Home Office. When dismissing her, the Council failed to follow the minimum dismissal procedure required by legislation.
K claimed unfair dismissal and was successful before an employment tribunal. The Council appealed to the Employment Appeal Tribunal (EAT) who overturned the tribunal’s decision. K then appealed against the EAT’s decision and the Court of Appeal has now given its judgment.
Court of Appeal’s decision
The facts of this case were quite complex and, as the Court stated, the information which was given to the parties by the various offices in the Home Office dealing with K’s legal status to work caused misunderstanding. Nevertheless, the Court held that the Council had a genuine but mistaken belief that the employee could not lawfully work in the UK.
In order for a dismissal to be potentially fair, an employer must be able to show that the employee was dismissed for a reason that fits within one of the six categories set down in legislation, namely conduct, capability, qualifications, redundancy, breach of a statutory provision or some other substantial reason.
The Court of Appeal held that, in this case, the employer’s genuine but mistaken belief that the employee could not work in the UK could amount to some other substantial reason and was therefore a potentially fair reason for dismissal.
Unfortunately, despite having a fair reason for dismissal, the Council’s failure to follow the minimum dismissal procedure rendered the dismissal automatically unfair.
Comment
The Council in this case did not think that the minimum dismissal procedures would apply because its primary reason for dismissal was that K’s continued employment would breach a statutory provision. If it had been successful in relying on this ground the minimum dismissal procedures would not have applied due to an exemption in the relevant regulations.
Unfortunately, because the Court found that in fact the reason for dismissal was ‘some other substantial reason’ the minimum dismissal procedures did apply, which therefore caught the Council out.
Our view is that you should follow the minimum dismissal procedures unless you are absolutely certain that the breach of a statutory provision exemption applies - or you will risk the dismissal being automatically unfair.
Remember too, all employers should follow certain procedures to check that their potential employees are eligible to work in the UK. This is because it is a criminal offence, punishable by a fine, to employ a person who is not entitled to work in the UK. The fine is currently £5,000.
We have produced guidance which summarises the procedure that you should follow to establish whether your employees are eligible to work in the UK. Access the guidance here.