Employment Cases Update

Nayak v Royal Mail Group Ltd UKEATS/0011/15/SM

Date published: 08/04/2016

Appeal against a finding that the Claimant had not been unfairly dismissed after it was held that the Respondent had a reasonable belief that he did not have the right to work in the UK.

 The Claimant was dismissed after the Respondent decided that he did not have the right to work in the UK. The respondent accepted that if the Claimant's circumstances continued to fall within the terms of section 3C of the 2002 Act then the Claimant had a continuing right to work in the United Kingdom. The basis for dismissal, however, was not that the Claimant had as a matter of fact no right to work in the United Kingdom but rather that there was insufficient evidence available to the Respondent, at the date of dismissal and it having made reasonable enquiry in the circumstances, to allow the employer to conclude that the terms of section 3C continued to apply. The Claimant's position before the ET was that the Respondent had misinterpreted the effect of the terms of section 3C. As the respondent had in its possession all of the information that allowed a conclusion that the Claimant had a continuing right to work in the UK, no genuine or reasonable belief that he was working illegally could be formed. The ET found that the Respondent's belief that the Claimant had no such right was a reasonable one. The Claimant appealed.

The EAT dismissed the appeal. On the basis of the detailed and comprehensive findings in fact made, the ET was well entitled to conclude that the dismissal of the claimant was both substantively and procedurally fair in terms of section 98(4) of the Employment Rights Act 1996.

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Appeal No. UKEATS/0011/15/SM

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On Monday 15th February 2016

THE HONOURABLE LADY WISE

(SITTING ALONE)

NAYAK (APPELLANT)

ROYAL MAIL GROUP LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant
Ms Lynsey Blyth, Representative
Ethnic Minorities Law Centre
103-105 Morrison Street
Edinburgh
EH3 8BX

For the Respondent
Mr Andrew Gibson, Solicitor
Morton Fraser LLP
Quartermile Two,
2 Lister Square,
Edinburgh
EH3 9GL

THE HONOURABLE LADY WISE

This case came before me for a full hearing at which Mr Sampath Nayak appealed against a decision of the Employment Tribunal ("ET"), sitting in Edinburgh in February 2015, in which the written reasons were sent to parties on 17 April 2015. The ET comprised Employment Judge J G d'Inverno, sitting alone. Ms J Paton, solicitor appeared on behalf of the respondent at the Employment Tribunal and her colleague, Mr Andrew Gibson, appeared at the Employment Appeal Tribunal. Mr Nayak appeared in person before the Employment Tribunal and was represented before me by Ms Lindsay Blyth, solicitor. 1.

I shall refer to the parties as claimant and respondent as they were in the tribunal below. The decision of the ET was that the respondent's dismissal of the claimant in May 2014 was for a fair substantial reason in terms of section 98(1)(b) of the Employment Rights Act 1996 ("ERA 1996"), that reason being the respondent's reasonably held belief that the claimant did not have the right to work in the United Kingdom. The dismissal was fair in terms of section 98(4) of the ERA 1996. The hearing before the ET had been restricted to the merits and in light of the decision made no further hearing to deal with the issue of remedy was considered necessary. 2.

The ET heard evidence from the claimant and from three employees of the respondent. The judge made over 50 detailed findings in fact, all of which were accepted as properly made in the hearing before me. I will summarise those findings briefly for the purposes of this appeal. The claimant commenced employment with the respondent on 7 January 2008. He was at the time in possession of a work visa which expired on 15 April 2009. Prior to its expiry he made an in time application for a further visa. Following a successful appeal a new visa was issued with effect from 1 December 2009. That visa was a Tier 1 (post study work) visa and expired on 1 December 2010. Prior to its expiry the claimant applied for a Tier 4 (general) student migrant visa. He had been accepted for a course in London in September 2010 which enabled him to apply for that visa. His application was refused but he appealed successfully to the First tier Tribunal (Immigration and Asylum Chamber). The decision upholding his appeal is dated 27 May 2011. The respondent, at all material times, had no further information about any visa issued to the claimant from that date. 3.

The respondent's understanding of section 3C of the Immigration Act 1971 was, at all material times, that where priory to the expiry of their current visa, an individual makes an in time application for a new visa then they retain the right to live and work in the UK under the terms of their previous visa provided that the application has not been decided by the home office, withdrawn and/or an appeal remains outstanding before a relevant tribunal or court in respect of a refusal. Accordingly, for the last three years of his employment with the respondent the claimant's position was that he was entitled to remain in the United Kingdom and work in terms of his original Tier 1 (post study work) visa while his application for a Tier 4 (general) student migrant visa was pending and under consideration. In March 2012 the respondent sought confirmation from the home office through its employer checking service in relation to the claimant's right to work in the UK. In a letter dated 9 March 2012 the Home Office confirmed that, at that time, the claimant had the right to work in the UK "on the basis of an outstanding appeal". The letter stated that appropriate document checks required to be repeated within 12 months. That letter was the last confirmation received by the respondent from the Home Office that the claimant had the right to work in the UK. As it happens, the respondent had erroneously told the Home Office that the claimant had commenced employment with them post February 2008, a matter to which I will return. 4.

In May 2013 the respondent sought further confirmation of the claimant's immigration status, this time setting out the correct date of commencement of employment. The Home Office employer checking service confirmed that because the claimant had commenced employment prior to 29 February 2008, no further checks were required if at the point of recruitment, current document checks had been carried out. Those checks included retaining on file copies of the original documentation checked by the employer. The respondent had not done that. The Home Office's confirmation that the respondent did not require to carry out further checks related primarily to the issue of whether the respondent could rely upon a statutory defence from prosecution. 5.

As a matter of policy, the respondent is and was concerned with the issue of whether a worker in their employment has or has not the legal right to remain in work in the United Kingdom, regardless of whether any statutory defence from prosecution was available in the event that no such entitlement was in place. As a result of that policy the respondent had and has a practice of undertaking checks on a six monthly basis on relevant employees' right to work in the UK, where section 3C applied or applies. This policy was implemented to minimise the risk of the respondent employing someone who has lost the protection of section 3C and is enforced by them irrespective of when an employee commenced employment. Even if the respondent had retained the relevant documentation about the claimant on file at the time of his employment with them, it would still have required Mr Nayak to provide six monthly updates of his status. The policy is a responsible one, designed to minimise the risk of the respondent employing someone who is working illegally. 6.

Following receipt of the letter from the Home Office of 9 March 2012 the respondent was satisfied that six months could pass before any further enquiry was made of the claimant. On 20 August 2012, 20 January 2013 and 17 February 2013 the respondent wrote to the claimant regarding the need for him to provide updated proof of his right to work in the United Kingdom. The claimant did not respond to any of these letters. The claimant had written once to the Home Office in about April 2012 asking that they advise him of when they were likely to determine his application but received no response. He then took a conscious decision not to make any further enquires of the Home Office. Between August 2012 and May 2014 the claimant was giving numerous opportunities to obtain and produce an update from the Home Office in relation to his visa application and failed to do so, taking no steps to obtain any documentation or information. Between December 2013 and May 2014 the respondent made more intensive enquiries of the claimant with a view to resolving the issue of whether he was entitled to work in the United Kingdom. He was interviewed in relation to his continued failure to provide updated documentation, formal correspondence with a request to do so was issued and it was explained to the claimant by the respondent that their understanding of the terms of section 3C was that the right to work which was conferred under it could last only while his application for his Tier 4 visa remained pending and undetermined. It was explained to the claimant that as it had been over four years since the original application was made no assumption that it remained pending and undetermined could safely be made. In March and April 2014 various emails were exchanged between employees of the respondent and the claimant in which the claimant was again asked to provide evidence by way of an update letter and warned that he may be dismissed if he failed to do so. The claimant's response was always to make reference to section 3C of the 1971 Act as giving him the right to work in the UK. On 8 May 2014 a meeting took place between the claimant and an employee of the respondent. The claimant did not provide the necessary documentation at the meeting and it was concluded by the respondent that all reasonable steps had been taken to confirm the position. The claimant was then dismissed by letter dated 9 May 2014. 7.

Mr Nayak exercised his right to appeal against dismissal and the internal appeal hearing was heard by an HR graduate of the respondent on 16 July 2014. Following that hearing the respondent's internal appeal officer wrote to the claimant on 29 July 2014 advising him that she was prepared to give him a further 42 days to provide the documentation requested. She suggested that the claimant make a subject access request, in terms of the Data Protection Act, to the Home Office. The claimant decided not to make the suggested subject access request or to otherwise contact the Home Office. On 8 August 2014 the respondent's internal appeal officer upheld the decision to dismiss. The Home Office is at all times under an obligation to respond to a request for confirmation of right to work status where the request is made by the individual whose right to work is the subject of the request. 8.

The legal issue before the tribunal was a relatively narrow one. The respondent accepted that if the claimant's circumstances continued to fall within the terms of section 3C of the 2002 Act then the claimant had a continuing right to work in the United Kingdom. The basis for dismissal, however, was not that the claimant had as a matter of fact no right to work in the United Kingdom but rather that there was insufficient evidence available to the respondent, at the date of dismissal and it having made reasonable enquiry in the circumstances, to allow the employer to conclude that the terms of section 3C continued to apply. Accordingly, the respondent's belief that the claimant had no such right, as at May 2014, was a reasonable one. The claimant's position before the ET was that the respondent had misinterpreted the effect of the terms of section 3C of the 2002 Act. As the respondent had in its possession all of the information that allowed a conclusion that Mr Nayak had a continuing right to work in the UK, no genuine or reasonable belief that he was working illegally could be formed. In particular, the copy of the decision of May 2011 of the Asylum and Immigration Tribunal upholding his appeal and the Home Office's letter of May 2012 were sufficient for that purpose. The respondent was under no obligation to make any further enquiry either of the Home Office or of the claimant. The respondent ought to have been prepared to continue to employ him without any confirmation for a continuing period of at least 10 years. 9.

The ET rejected the claimant's submission and held that a reasonable employer would consider themselves unable to be satisfied that the claimants original application remained pending and undetermined, particularly in circumstances where the claimant, over a prolonged period and in the full knowledge that his continuing employment might ultimately depend on it, resolutely refused to approach the Home Office for an update and confirmation of whether his application indeed remained pending (paragraph 86). 10.

At the hearing before me it was argued on behalf of the claimant that the ET's decision was contrary to the evidence led before it and was one that no reasonable tribunal could have reached. It was submitted that the claimant was subjected to unnecessary checks due to the respondent's failure to adhere to the Home Office guidance in respect of employee document checks. It was submitted that a reasonable employer would have advised the Home Office of their failure to make the appropriate employee document checks at the time of the commencements of the claimant's employment in January 2008. It was submitted further that, had the respondent advised the Home Office of their failing and sought further clarification of the claimant's right to work, the claimant would not have been subjected to these checks. Accordingly the respondent had followed an unfair procedure which might in itself make the employers action in dismissing the employee unreasonable – Kelly v University of Southampton [2008] ICR 357. It was also argued that the respondent had failed to take all reasonable steps to investigate the matter of the claimant's entitlement to work in the UK. It was set in law that an employer must take all steps that are reasonable in the circumstances – Kurumuth v NHS Trust Middlesex University Hospital UKEAT/0524/10/CEA. Without taking those reasonable steps the respondent could not form a genuine and reasonably held belief that the claimant was no longer legally allowed to work in this country. It was clear from the findings of the ET that the claimant had made an initial enquiry as to the progress of his application, both subsequent to the successful outcome of his immigration appeal and also by email enquiry to the Home Office on 15 November 2011. While he had been issued with guidance he received no formal direct response. The respondent could not have held a genuine belief that the claimant did not have a right to work against the background of the evidence that had been provided to them. This case could be contrasted with Bouchaala v Trusthouse Forte Hotels Ltd [1980] ICR 721 in which the employers had been advised outright by the Home Office that the employee did not have the legal right to work in the UK. In this case where no such confirmation had been received there was no basis for the ET's conclusion that the respondent had sufficient evidence upon which to form a genuine and reasonably held belief that the claimant was working illegally. Accordingly, the ET's decision was not properly based on the evidence led. 11.

12. The second error in law said to have been made by the ET was that the respondent applied a different test to that required by statute (sections 15 – 25 of the Immigration, Asylum and Nationality Act 2006) in that they had no statutory duty to make further checks in relation to the legality of his working in the UK because he had been employed prior to 29 February 2008. In other words, they went beyond what was required of them by statute. Had they fulfilled only their statutory duties they would not have required to continually make checks of the claimant in relation to his immigration status. It was argued that the respondent's applied a "different test" to the claimant in requiring these six monthly checks. In any event the ET erred in law in taking into consideration matters not relevant to the decision of the respondent. There was no basis for speculating what might have happened between the successful appeal and the time of the dismissal sofar as changes in the claimant's position were concerned. In all the circumstances the respondent's belief was misconceived and without it the tribunal was not entitled to hold that the dismissal was fair.

Mr Gibson for the respondent emphasised the difference between a section 98(1)(b) dismissal which involved "some other substantial reason" as opposed to one on the basis of section 98(2)(d) of the 1996 Act which did require some knowledge on the part of the employer of a prohibition against working. In this case all the respondent had to do was satisfy the ET that it held a genuine and reasonable belief as at 17 May 2014 that the claimant was not legally entitled to work in UK. That belief could be mistaken but still reasonable – Klusova v London Borough of Hounslow [2008] ICR 396. The unchallenged findings in fact of the ET, in particular in relation to the claimant's persistent failure to clarify the position by a request of the Home Office with which they would have been obliged to comply, provided a sufficient basis for the conclusion in the judgment. 13.

On the issue of reasonableness of the respondent, there was sufficient evidence before the employer that there was a significant risk that section 3C of the Immigration Act did not continue to apply to the claimant. The letter of 9 March 2012 from the Home Office should be read as meaning that the appeal which had succeeded in 2013 had not yet been implemented. Against the background of the respondent's experience with other employee's in similar positions, a period of three years to implement a decision in a successful appeal was outwith that experience. There had been no particular challenge before the ET to the reasonableness of the policy of the respondent to require employees to confirm their position every six months. Sofar as the fairness of the investigation was concerned the position was fully set out by the ET at paragraphs 98 – 103. On any view it was the employee who was best placed to obtain the information about his status and only he could compel the Home Office to provide confirmation. There was an inconsistency in the argument that the respondent was carrying out unnecessary checks over and above what was statutorily required while at that same time as suggesting that a reasonable employer would have made their own further enquiries. Taking the events as a whole, it was clear that the respondent had made repeated requests of the claimant about his status, and they had contacted the Home Office on the first occasion that gave rise to the letter of 9 March 2012. When they reverted for further information this time with the correct commencement of employment date, the employee checking service refused to give them any information. Against that background only the claimant could assist as the respondent could not guarantee eliciting any further response from the Home Office. The crux of the matter was that the respondent was asking its employee a reasonable question and the employee refused to answer it. There was ample basis on which the respondent could reasonably conclude (whether the conclusion was correct or not) that the claimant no longer had any entitlement to work in the UK. Reference is made to the ways in which the claimant's circumstances could have changed in paragraph 86 of the ET judgment. It was noteworthy that the type of visa the claimant had applied for in 2010 was a different one to his previous post study work visa. The Tier 4 application was dependent on a course that was known to be no longer on offer. 14.

Dealing with the matter of the respondent's failure to make the correct documentation checks on the commencement of the claimant's employment with them, it was submitted that the question was whether the respondent should have reverted to the Home Office to clarify that they were not, strictly, in the pre February 2008 position because they had not carried out those proper checks. However, the inevitable outcome of that contact would be that the obligation to check documents would then resurface and the claimant would be in no a better position vis-a-vis him and the respondent than he was by May 2014. 15.

There was a complete lack of evidence that the claimant had entitlement to work in the United Kingdom by virtue of section 3C of the 2002 Act as at 17 May 2004. The undisputed facts were that by that stage it had been over two years since any confirmation that his application was outstanding and there was several ways in which the position could have changed. That period of time, coupled with the claimant's repeated failures to comply with requests for information, led to the reasonable belief. The employment tribunal did not err in law. There had been no determination that the respondent was entitled to apply a different test to that which applied to the claimant in terms of section 15 – 25 of the 2006 Act. The respondent's policy to require all employees subject to time limited immigration control to provide renewed proof every six months of a continuing right to work in the UK had been accepted as a reasonable policy. All the respondent had done was implement its own reasonable policy. In the absence of any identifiable error of law the decision of the ET should stand and the appeal should be dismissed. 16.

17. Having considered carefully the submissions made to me, I am not satisfied that the appellant has established any error of law on the part of the ET. The central issue is whether there was sufficient evidence of a genuine and reasonable belief on the part of the respondent that the claimant no longer had a right to work in the United Kingdom and related to that, whether it could be said that no reasonable tribunal on the basis of that evidence, would have reached the decision that it did. It is clear that the genuineness or otherwise of an employer's relevant belief in this context is a matter of inference from admitted or established primary facts – Klusova v London Borough of Hounslow [2007] EWCA Civ 1127 per Mummery LJ at paragraph 67. In this case the employment judge relied particularly on four uncontradicted aspects of the evidence before him. These were as follows:

(1) the enquires made by the respondent of the Home Office prior to dismissal;

(2) the respondent's inability to obtain directly from the Home Office a response providing up to date information of the claimants immigration status;

(3) the repeated requests made of the claimant by the respondent over a period long in excess of that strictly required under their own policy;

(4) the claimants persistent failure to cooperate in the respondents enquiry by contacting the Home Office himself with a request for confirmation of the position. The Home Office were under a duty to respond to any such request.

The employment judge confirms at paragraph 94 of his judgment that it was these four aspects of evidence that he regarded as sufficient to support a genuine belief on the part of the respondent. It is well established that such a genuine belief can constitute some other substantial reason for dismissal in terms of the legislation – Bouchaala v Trusthouse Forte Hotels Ltd [1981] ICR 721. There were a number of other adminicles of evidence supportive of the genuineness of the respondent's belief. These included their past experience with employees in a similar situation to the claimant, the length of time that had passed between successful appeal in May 2011 and the date of dismissal and the inability of the respondent to guarantee a response had it undertaken further enquiries itself. As Mr Gibson emphasised in his submissions, the conduct of the claimant was a significant feature in the development of the belief on the part of the respondent that his immigration status may have changed. It was in the claimants own interest to cooperate with the requests for information. He retained the protection of section 3C of the Immigration Act 1971 (as amended) for so long as the Home Office delayed in implementing the successful appeal and issuing him with a visa. Accordingly, the respondent reasonably expected him to make such enquiries if his expectation was that he continued to have the right to work in the United Kingdom. The situation of the respondent in this case differs from one involving s 98(2)(d) of the 1996 Act, where some actual knowledge of the employee's right to work status must be obtained. The respondent in this case could not be expected to wait almost indefinitely, studiously avoiding forming any genuine and reasonable belief as to the claimant's right or lack of right to work in the United Kingdom. The time frame within which the respondent made requests for information that only the claimant could deliver was an entirely reasonable one.

I reject also the contention that the ET ought not to have found that the respondent took all steps that were reasonable in the circumstances to investigate the position. The reasons for the ET's conclusion on the point are set out clearly in paragraphs 98 to 103 of the judgment. There was no procedural unfairness and the respondent's internal appeals officer went to considerable lengths to ensure that the claimant had an additional lengthy opportunity to make appropriate enquires with her assistance. 18.

Sofar as the issue of the employee checking service is concerned, the respondent's admitted failure to make the appropriate document check in 2008 has no bearing on the fairness or otherwise of the dismissal in 2014. The comfort given by the Home Office in relation to those employed prior to February 2008 was subject to a caveat. In the absence of correct document checks having been carried out there was no protection from penalty for the employer. Accordingly, had the respondent replied to the checking service by making clear that they had not carried out appropriate document checks, the inevitable result would have been the protection was not available and checks had to be carried out. None of that has any material bearing on the case because it was not suggested before the ET that the respondent's own policy of making checks every six months was unreasonable. Previous experience had shown that fines could still be imposed for employees taken on prior to February 2008 in circumstances similar to that of the claimant. 19.

20. On the basis of the detailed and comprehensive findings in fact made, the ET was well entitled to conclude that the dismissal of the claimant was both substantively and procedurally fair in terms of section 98(4) of the Employment Rights Act 1996. The appeal is dismissed.