Kurumuth v NHS Trust North Middlesex University Hospital

An employer may dismiss an employee where it genuinely believes that the employee cannot lawfully continue working, provided that belief supplies a potentially fair reason and the employer acts reasonably under Employment Rights Act 1996, section 98(4). The tribunal need not determine the employee’s actual immigration status where that question belongs to specialist immigration authorities and is unnecessary to decide the unfair-dismissal issue. A procedural defect does not prevent a Polkey reduction. Compensation may be reduced to reflect both the inevitable dismissal and the period required to complete a proper procedure.

The Claimant, a healthcare support worker, brought claims of unfair dismissal and breach of contract after the Respondent suspended her without pay and dismissed her without notice. The Respondent believed that she had not established a continuing right to work in the United Kingdom, although her immigration position remained unresolved by the UK Border Agency.

An Employment Tribunal found the dismissal unfair because the procedure was inadequate, but reduced compensatory compensation to zero under Polkey and dismissed the contractual claims. The appeal concerned the proper characterisation of the dismissal, whether the EAT should determine the Claimant’s immigration status, the compensation reduction, and the claims for notice and suspension pay.

1. Appeal allowed in part. The Respondent conceded the contractual claims. The Claimant was entitled to notice pay and pay during the period of suspension. The Respondent also conceded that a further week’s pay should be awarded for the time required to conduct a proper disciplinary hearing. The remaining grounds were dismissed.
2. The Employment Tribunal had misstated the burden of proof by saying that the Claimant had to establish her right to work. Under Employment Rights Act 1996, section 98(1), the employer must show the reason for dismissal. The Respondent had discharged that burden by showing its genuine belief that the Claimant was not entitled to work.
3. That belief could constitute a potentially fair reason under section 98(2)(b), although it did not fall within section 98(2)(d) because there was no evidence of an actual breach of an enactment. The decisive question under section 98(4) was whether the Respondent acted reasonably in treating the belief as sufficient reason for dismissal.
4. The EAT was not required to determine the Claimant’s actual immigration status. That was a matter for specialist immigration authorities. The Respondent had taken reasonable investigative steps, including seeking information from the UK Border Agency and legal advice, but had not received a clear resolution.
5. The Polkey principle applied. If dismissal would have occurred on the same day following a proper procedure, compensation could properly be reduced to zero. If the proper procedure would have taken time and dismissal would then have remained inevitable, justice and equity required compensation for that intervening period, here assessed at one week by reference to Mining Supplies (Longwall) Ltd v Baker.

• Employment Tribunal, Watford: The Tribunal found the dismissal unfair because of procedural defects, awarded only the basic award, reduced compensatory compensation to zero under Polkey, and dismissed the breach of contract claims.
• Employment Appeal Tribunal: The appeal was allowed in respect of notice pay, suspension pay and one week’s compensation. Otherwise, it was dismissed.