The Employment Appeal Tribunal case of Nayak v Royal Mail Group Ltd (Unfair Dismissal) [2016] UKEAT 0011_15_1502 demonstrates the difficulty of ascertaining whether an employee has a right to work in the UK.

Royal Mail first employed Mr Nayak in January 2008 when he had a valid work visa. He was granted further leave to remain under the Tier 1 Post Study Work scheme, and then in 2010 he applied for leave to remain as a Tier 4 student. That application was initially refused, but Mr Nayak appealed and his appeal was decided in his favour on 27 May 2011. In such cases the applicant’s file is returned to the Home Office so that residence documentation can be issued, and the applicant waits for the outcome.

Royal Mail had a policy of reviewing the right to work of non-EU workers every 6 months. In 2012 the company used the Employer Checking Service (“ECS”) to assure itself that Mr Nayak continued to have leave to remain while awaiting the outcome of his appeal. In May 2013 the company applied again to the ECS. This time the Home Office informed them that provided they had undertaken the correct document checks before Mr Nayak started work, they did not have to re-check his documents again.

Royal Mail had not in fact made those checks when Mr Nayak started work and they continued with their own policy of performing checks on Mr Nayak’s situation every 6 months.

The company then made the first of a series of requests to Mr Nayak to contact the Home Office himself to request confirmation of his ongoing permission to work in the UK. Mr Nayak failed to comply with any of these requests and eventually the company dismissed him.

The EAT upheld the Employment Tribunal’s decision that he dismissal was fair. In the circumstances, Royal Mail’s checking policy was no unreasonable, and they followed a fair procedure. The ruling confirms that even if it is uncertain whether an employee has a right to work in the UK or not, an employer can still dismiss for “some other substantial reason” under the Employment Rights Act 1996 where there is a “genuine and reasonable belief” that the employee no longer has such a right.

The case also illustrates the labyrinth of rules that apply to employers checking an employee’s right to work. In this case, the employer’s concern was exacerbated by the fact that it could not turn back the clock to 2008 and retrospectively obtain protection by checking the right documents. For his part the employee may well have had a continuing right to work, but it was not enough for him simply to assert this.

Employers can find out more about right to work checks on the Home Office website at https://www.gov.uk/government/publications/right-to-work-checks-employers-guide

Contact me for advice on immigration compliance at work, or for help if you have been issued with a fine.