In the case of Baker v Abellio London Ltd  UKEAT 0250_16_0510, the Employment Appeal Tribunal found that not having documents confirming an employee’s right to work is not in itself a fair reason for dismissal. However, genuinely believing that you need the documents can be a fair reason for dismissal.
It is good news that there is no requirement on an employer to obtain certain documents to continue employing someone. If an employer is satisfied that its employee has the right to work for example because they have evidence that an application was made on time; or they have a positive verification from the Home Office of the employee’s right to work – they cannot dismiss the employee only because they do not have a document demonstrating that right.
On the other hand, that does not solve the situation when employers are simply not satisfied that the employee has the right to work in the first place, which is often what happens.
Whilst Baker v Abellio is good news in cases where clients work for employers who accept that they have the right to work, those clients whose employers suspect otherwise will continue to rely on the Home Office’s often unreliable Employer Checking Service.
Please speak to our legal team on 020 3695 4626 if you need any further advise.