Baker v. Abellio London Ltd

An employer cannot rely on Employment Rights Act 1996 section 98(2)(d) where continued employment was not in fact prohibited by an enactment. Under Immigration, Asylum and Nationality Act 2006 section 15, the civil-penalty regime applies only to a person subject to immigration control. The statutory-excuse provision in section 15(3) does not itself require an employer to obtain documents.

A genuine but mistaken belief that employment is unlawful may nevertheless amount to some other substantial reason. Its reasonableness, including the adequacy of the employer's enquiries and information supplied to immigration authorities, is material to fairness. Withdrawal and dismissal of a tribunal claim are separate steps; dismissal may be withheld where it would not be in the interests of justice.

The claimant, a Jamaican national with a right of abode and an accepted right to work in the United Kingdom, was a bus driver employed by the respondent. Following an audit, the respondent required immigration documents additional to his passport, suspended him without pay, and dismissed him when he did not provide them.

An Employment Judge dismissed his unfair-dismissal claim. The Judge held that continued employment would contravene immigration legislation and, alternatively, that the failure to provide documents was some other substantial reason. The Judge also dismissed, following withdrawal, his claim for unlawful deduction from wages.

The claimant appealed. The central issues were whether the asserted illegality supplied a potentially fair reason, whether dismissal for a mistaken belief was fair, and whether the withdrawn wages claim should have been dismissed.

1. Appeal allowed in substantial part. The Employment Judge erred in holding that the respondent could not continue to employ the claimant without contravening Immigration, Asylum and Nationality Act 2006 section 15. Section 15 concerns employment of an adult subject to immigration control. The claimant did not require leave to enter or remain in the United Kingdom and was therefore not within that category under section 25.

2. Further, section 15(3) provides an employer with a possible excuse from a penalty where prescribed documentary requirements are met. It does not impose a positive duty to obtain those documents. The dismissal could not therefore fall within Employment Rights Act 1996 section 98(2)(d).

3. The Employment Judge did not, however, err in treating the respondent's genuine, though mistaken, belief that employment without the documents would be unlawful as capable of amounting to some other substantial reason under section 98(1)(b). Bouchaala and Klusova supported that conclusion.

4. The finding that dismissal was fair could not stand. Where dismissal rests on a mistaken belief, the reasonableness of that belief is material. The tribunal should have considered whether the respondent gave the Home Office and UK Border Agency sufficient and accurate information to assess whether section 15 applied. The absence of evidence of the precise enquiries and responses made the fairness assessment defective.

5. The wages claim had been withdrawn, but its dismissal was set aside. Rules 51 and 52 create a two-stage process: withdrawal is a party's act, whereas dismissal is a judicial act. Given that the only asserted basis for withholding wages was the erroneous alleged illegality, dismissal of the plainly viable withdrawn claim was not in the interests of justice. The claim was reinstated.

6. The issues of fairness under section 98(4) and unlawful deduction from wages were remitted to a differently constituted Employment Tribunal.

• Employment Appeal Tribunal: Allowed the appeal in substantial part, set aside the findings under section 98(2)(d), fairness, and dismissal of the wages claim, and remitted the remaining issues to a differently constituted tribunal.
• Employment Tribunal: Employment Judge Webster, sitting alone, dismissed the unfair-dismissal claim and dismissed the unlawful-deduction claim following withdrawal. Judgment sent to the parties on 11 April 2016.