The Employment Appeal Tribunal (EAT) held in the recent case of Nayak v Royal Mail Ltd that the Royal Mail acted reasonably on dismissing Mr Nayak, as they held a genuine and reasonable belief that his right to work in the UK had lapsed.
Mr Nayak was employed by Royal Mail Group between January 2008 and May 2014, when Royal Mail terminated his employment because they believed he no longer had a right to work in the UK.
Mr Nayak began work on a visa which expired in April 2009. He applied for a new Tier 1 (post study work) visa prior to its expiry, which was granted from December 2009 to December 2010. Before this expired, he applied for a Tier 4 (general student migrant) visa. Although his application was refused, he appealed to the immigration tribunal in May 2011, when his application was passed to the Home Office for consideration and processing.
Royal Mail had an internal policy of carrying out employee immigration checks on a six-monthly basis. Whilst Mr Nayak’s application was processing, Royal Mail contacted the Home Office who confirmed that Mr Nayak could work “on the basis of an outstanding appeal”. Mr Nayak only checked the status of his application once, in about April 2012. After requesting an update on his immigration status on numerous occasions throughout 2013 and into May 2014, Royal Mail dismissed Mr Nayak from his employment after warning that failure to provide evidence of his status would result in dismissal. On Mr Nayak’s appeal, he was provided with an extension by which to get the necessary information from the Home Office. He did not contact the Office and the decision to dismiss was upheld.
The EAT dismissed the appeal and upheld that the decision to dismiss was both substantively and procedurally fair. Royal Mail had made ample attempts to establish Mr Nayak’s immigration status and there was evidence of his persistent failure to co-operate with his employer.
Conclusion and Practice Point
Establishing an employee’s immigration status has always been a difficult area, as employers try to balance the interests of their employees whilst ensuring they do not fall foul of immigration laws. This case confirmed that, where employers have a genuine and reasonable belief that the employee does not have a right to work in the UK, dismissal is potentially fair, provided a reasonable investigation had been carried out in all the circumstances.
Note also that the Immigration Bill 2015/16 is proposing to extend the existing criminal offence of knowingly employing an illegal migrant so that it applies in circumstances when an employer has reasonable cause to believe a person is an illegal worker.
Employers would be wise to review their immigration and right to work policies to ensure they are being correctly followed and are crucially up to date.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.