Badara v Pulse Healthcare Ltd

Where an employee has an established right to work as the family member of an EEA national, an employer’s contractual requirement for evidence of eligibility must be construed in the light of that right. The employer may not necessarily insist upon a positive Home Office Employer Checking Service response by relying on a civil-penalty regime that does not govern that employee’s right to work.

The relevant distinction in UKEAT/0192/11/DA and Home Office guidance was material both to whether contractual evidence requirements were met and to the legitimate aim and proportionality of a positive-ECS-check requirement for indirect-discrimination purposes. A direct-discrimination claim nevertheless fails where the tribunal’s finding as to the employer’s genuine reason for its treatment cannot realistically be displaced.

The claimant, a Nigerian national and family member of an EEA national, had a right to work in the United Kingdom under Free Movement European Directive 2004/38/EC and the Immigration (European Economic Area) Regulations 2006. After his residence card expired, the respondent withheld work because Home Office ECS checks were negative.

The Employment Tribunal held that the claimant was an employee. It allowed an unlawful-deduction claim only from 16 October to 17 November 2015, and dismissed direct and indirect race or nationality discrimination claims. It considered that clause 8.1 of the contractual documentation and the immigration-penalty regime made the respondent’s reliance on ECS checks reasonable.

The claimant appealed. The central issue was whether the Tribunal had wrongly treated positive ECS checks as required despite the claimant’s established EEA-derived right to work.

1. Appeal allowed in part. The appeal against dismissal of the direct-discrimination claim was dismissed. The appeals concerning unlawful deductions and indirect discrimination were allowed and remitted to the same Employment Tribunal.

2. The Tribunal had, albeit elliptically, decided the wages claim on the basis that clause 8.1 required the claimant to produce positive ECS checks before he became entitled to work and payment. That contractual issue could not be resolved without considering Okuoimose v City Facilities Management (UK) Ltd, UKEAT/0192/11/DA, and the relevant Home Office guidance.

3. Okuoimose identified a material distinction. A family member of an EEA national with an established right to work did not need Home Office documentation to create that right. The civil-penalty provisions in Immigration, Asylum and Nationality Act 2006 and the Immigration (Restrictions on Employment) Order 2007 were potentially irrelevant to the evidential requirement which clause 8.1 could properly impose. It was properly arguable that evidence of family-member status and a valid passport would suffice, rather than a positive ECS response.

4. The Tribunal had disregarded that distinction and the guidance’s “Additional Information” section. It therefore erred in its construction and application of clause 8.1. The factual questions required reconsideration and could not properly be decided by the Appeal Tribunal.

5. The same omission was material to indirect discrimination. It bore on both the asserted legitimate aim of compliance with relevant immigration requirements and the proportionality of requiring a positive ECS check from non-EU nationals. That issue also admitted of more than one factual answer and was remitted.

6. By contrast, there was no basis on which the Tribunal could have reached a different conclusion on direct discrimination. The respondent’s genuine reason was its concern about penalties, reinforced by the negative ECS warnings, rather than race or nationality. The direct-discrimination claim remained dismissed.

• Employment Appeal Tribunal: Allowed the appeal in part. The unlawful-deduction and indirect-discrimination claims were remitted to the same Employment Tribunal; the direct-discrimination appeal was dismissed.

• Employment Tribunal, London Central: Decision sent on 11 May 2018. It found that the claimant was an employee, partly allowed the unlawful-deduction claim, and dismissed the discrimination claims.

• Earlier Employment Appeal Tribunal stage: The first Employment Tribunal decision, which had dismissed the first ET1 claim, was set aside on 27 April 2017 and the matter remitted to a fresh Tribunal. No citation is stated in the judgment.