In Nayak v Royal Mail Group the Employment Appeal Tribunal (EAT) upheld an employment tribunal’s decision that an employer’s genuine and reasonable belief that its employee was no longer permitted to work in the UK was sufficient to justify his subsequent dismissal.
Mr Nayak was employed by Royal Mail between 2008 and 2014, when his employment was terminated because Royal Mail believed (wrongly) that he no longer had the right to work in the UK. In 2010, prior to the expiry of his work visa, Mr Nayak made a further application for a different type visa. This application was originally refused. However, following an appeal, his application was submitted to the Home Office for consideration and processing.
Royal Mail’s internal policy in situations where an employee’s visa outcome was ‘pending’ was to carry out right to work checks on a six-monthly basis, regardless of whether initial right to work checks might continue to provide a ‘statutory defence’ to prosecution for employing an illegal worker. Over the next four years, Royal Mail asked Mr Nayak on numerous occasions about the status of his visa application and requested that he produce proof of his updated right to work. Mr Nayak failed to respond to these requests. Royal Mail also made a number of attempts to clarify Mr Nayak’s immigration status directly with the Home Office, but again failed to receive a satisfactory response.
After a warning that a continued failure to produce evidence as to his immigration status could result in dismissal, Mr Nayak was dismissed on the basis that Royal Mail believed that he was no longer entitled to work in the UK. Mr Nayak appealed his dismissal. He was then given a further 42 days to produce the requested documentation. Royal Mail believed this would be sufficient time for him to make a data protection subject access request of the Home Office placing them under a legal duty to respond. Mr Nayak failed to make such an application or to provide any evidence as to his continued right to work. His dismissal was therefore upheld on appeal.
Mr Nayak brought an unfair dismissal claim. The employment tribunal dismissed his claim and held that there was sufficient evidence to conclude that in the circumstances a reasonable employer would not be satisfied that Mr Nayak continued to have the right to work in the UK and that Royal Mail had been entitled to dismiss him on the basis of some other substantial reason (SOSR) under section 98(1)(b) of the Employment Rights Act 1996 (ERA). The tribunal found that Royal Mail had followed a reasonable process in doing so and found Mr Nayak’s dismissal to be fair.
Mr Nayak appealed the employment tribunal’s decision.
In upholding the employment tribunal’s decision that Mr Nayak’s dismissal was both substantively and procedurally fair, the EAT noted that it was well established that an employer’s ‘genuine and reasonable’ belief can constitute SOSR for the purposes of a fair dismissal. The EAT placed particular reliance on four aspects of uncontested evidence before the employment tribunal to determine that it was not unreasonable for it to conclude that at the point of dismissal, Royal Mail had a ‘genuine and reasonable belief’ that Mr Nayak no longer had the right to work in the UK.
In particular the EAT pointed to:
- Royal Mail’s enquiries of the Home Office prior to dismissing Mr Nayak.
- The fact that, despite these enquiries, Royal Mail was unable to obtain a conclusive response directly from the Home Office as to Mr Nayak’s updated immigration status.
- Royal Mail’s repeated unsuccessful requests for further information directly from Mr Nayak.
- Mr Nayak’s persistent failure to cooperate with Royal Mail in its efforts to establish his immigration status (in particular its request that he make a subject access request of the Home Office).
This decision is useful reminder of the wider scope of SOSR to fairly dismiss an employee you believe is not entitled to work in the UK, rather than dismissing by virtue of ‘statutory restriction’ under section 98(2)(d) ERA. Dismissal under section 98(2)(d) requires the employer’s actual ‘knowledge’ that continued employment would in fact breach a statutory enactment. Whereas, for the purposes of a fair dismissal for SOSR an employer’s ‘genuine and reasonable belief’ can be sufficient.
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