Nayak v Royal Mail Group Ltd

An employer may fairly dismiss for some other substantial reason where it holds a genuine and reasonable belief that an employee has lost the right to work in the United Kingdom. The belief may be mistaken. Its genuineness is inferred from the established facts.

In assessing fairness under section 98(4), the tribunal may consider the employer’s reasonable enquiries, the information it could obtain, repeated requests to the employee, and the employee’s failure to provide information uniquely available to them. An employer need not wait indefinitely before forming such a belief.

The claimant was dismissed after failing, over an extended period, to provide updated confirmation of his immigration status. The respondent believed that there was insufficient evidence that the claimant continued to benefit from section 3C of the Immigration Act 1971.

The Employment Tribunal held that dismissal was for a fair substantial reason under section 98(1)(b) and was fair under section 98(4) of the Employment Rights Act 1996. The claimant appealed, contending that the respondent had made unnecessary checks, had not adequately investigated the position, and could not reasonably believe that he lacked a right to work.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the respondent had a genuine and reasonable belief that the claimant no longer had a right to work in the United Kingdom. That belief constituted some other substantial reason for dismissal under section 98(1)(b) of the Employment Rights Act 1996.

2. The genuineness of the employer’s belief was properly inferred from the evidence. The relevant evidence included the respondent’s enquiries of the Home Office, its inability to obtain current information directly, its repeated requests to the claimant over a period exceeding its six-month policy, and the claimant’s persistent failure to seek confirmation himself, although the Home Office was obliged to respond to his request.

3. The respondent’s conclusion could be mistaken and still be reasonable. Unlike a dismissal under section 98(2)(d), this dismissal did not require actual knowledge that employment was prohibited. The respondent could not be required to wait almost indefinitely without forming a genuine and reasonable view of the claimant’s continuing entitlement to work.

4. The Tribunal was also entitled to find that the respondent had taken all reasonable investigative steps and that the procedure was fair. The internal appeal officer gave the claimant a further substantial opportunity, with assistance, to obtain the required information.

5. The respondent’s failure to complete the appropriate recruitment document checks in 2008 did not affect the fairness of the 2014 dismissal. Any statutory checking position did not render unreasonable the respondent’s unchallenged policy of six-monthly confirmation for employees subject to time-limited immigration control.

• Employment Appeal Tribunal: appeal dismissed; the Employment Tribunal’s finding that the dismissal was fair under section 98(4) of the Employment Rights Act 1996 was upheld.
• Employment Tribunal, Edinburgh: held that the dismissal in May 2014 was for a fair substantial reason under section 98(1)(b) and was fair under section 98(4) of the Employment Rights Act 1996.