As discussed in a previous article “Employment Law vs Immigration Law Part 1”, Employment Law and Immigration Law are two separate areas of law but it can get complex when they cross paths. Employment Law is concerned with the rights of employees while Immigration Law is concerned with whether a person from outside or inside of the UK can join a UK based workforce.
We considered how both areas of law can create conflicting situations when it comes to employers rejecting job applicants who don’t already have Right to Work in the UK.
In this article, we will discuss another question:
Should employers dismiss employees who don’t hold the right to work in the UK?
According to Immigration Law, employees must have ‘Right to Work’ for their employers in the UK. If an employee does not possess ‘Right to Work’, continuing to let them work can put the employer at risk.
So, should they dismiss the employee? Employment Law comes into play again, creating a conflict. According to Employment Law, employees who have served for more than two years cannot be “unfairly” dismissed from the job. In fact, irrespective of their length of service, all employees have the right to be treated without discrimination.
To comply both with Immigration Law and Employment Law can be a real challenge when employers suspect that an employee may not hold the right to work. What can help?
Conduct ‘Right to Work’ Checks
If an employee is working without immigration permission, he is an illegal worker. His employer may face a financial penalty of up to £20,000 and even criminal prosecution if he knew, or should have known, about the employee’s immigration situation.
However, if the employer conducted a proper ‘Right to Work’ check before the start of employment, he will be exempted from penalty. A follow-up check would be necessary if the employee had a time-limited permission to work.
What if employers learn that an employee who previously had the right to work in the UK does not hold the right anymore, perhaps because they forgot to apply for an extension before the permission expired? If such a situation arises, the employer must take act tactfully and quickly because continuing to let the employee work will put the employer at risk.
Although urgent action is required to comply with Immigration Law, the employer must not forget to comply with Employment Law. In order to be balanced, the employer must investigate the employees ‘Right to Work’ status. To accomplish this in a fair manner, the employer should first meet with the employee and encourage him to provide accurate information on his immigration status. Then, the employer can conduct a check using the Home Office’s employer checking service.
After a fair investigation, if an employer finds out that the employee does not have right to work, he can dismiss the employee without an issue. However, if the investigation was not conducted fairly, the employee can lodge a claim for unfair dismissal or discrimination.
The termination letter must include:
- A description of the investigation
- A reference to the Right to Work clause in the employment contract
- The reason for dismissal
- The right to appeal
- An offer of returning to employment if the employee can prove that they have right to work
Since details may differ in each case, it is recommended that employers take legal advice to avoid violating immigration law or employment law. For example, an employee who does not seem to have right to work may actually have one.
For legal help on this matter, please get in touch with our immigration solicitor by calling 01582 383888 if you are in Luton and 02034393888 if you are in London.
