A recent UK case considered whether an employer acted reasonably in requiring an employee, who was not a national of the European Economic Area (EEA), married to an EEA national, to produce documentation to show his right to work in the UK.

In the UK:

1) it is illegal to for an employer in the UK to employ somebody who does not have a right to work in the UK;

2) an employer can avoid liability for a civil penalty for breach of the above obligation if it carries out the requisite right to work checks before an employee’s employment commences and, in respect of migrants with limited leave to remain, re-checks before the expiry of their leave;

3) employers should check original documents. Where adequate evidence cannot be provided by an employee, the employer can obtain a positive verification notice from the employer checking service provided by the Home Office;

4) under current EU free movement laws, EEA nationals, as well as some non-EEA family members, are free to live, reside and work in the UK and this requires no documentation – it is an automatic right; and

5) notwithstanding 4) above, an employer cannot conduct a valid right to work check unless the non-EEA family member can provide evidence of their right to work in the UK (i.e. an EEA Family Permit or a Residence Card).

The question therefore arose as to whether an employer can require such an employee to provide evidence of his right to work in the UK, notwithstanding that the individual automatically has a right to work in the UK?

This recent case concerned a Nigerian national married to EEA national resident, who came to the UK in 2003. It was common ground between the parties that he had a right to work in the UK.  Prior to commencing employment in February 2013, he supplied a Residence Card which was due to expire on 20 January 2015. In advance of its expiration, his employer reminded him of the need to renew it.   The employee applied for an extension of his Residence Card on the afternoon of the date it expired, 20 January 2015, and gave evidence of this application to his employer – this evidence did not satisfy Home Office requirements for right to work checks as it did not constitute a List B Part 2 Document.  His employer therefore stopped providing work to him and withheld pay from 21 January 2015.  A Certificate of Application (a List B Part 2 document) was provided by him on 9 March 2015; however, this was preceded and followed by negative employer checking service checks and so it also did not satisfy Home Office right to work check rules.  Indeed, all employer checking service checks carried out by the employer between 21 January 2015 and 15 July 2015 were negative.

The employee brought various claims in the employment tribunal in April 2015 against his employer.   In October 2015, he received his Permanent Residence card and provided this to the employer on 14 October 2015; this document provided him with evidence of a permanent right to work in the UK.  However, the Employment Tribunal found against the employee on 29 October 2015 , holding that it was reasonable to require proof of eligibility to work in the form of positive employer checking services checks, which had not been done.  As a result the  employer summarily dismissed him on 17 November 2015.

The employee appealed against the original employment tribunal decision and brought another claim.

The EAT dismissed the employee’s direct race discrimination claim, holding that the reason for the withholding of pay was to avoid penalties which the employer was concerned may arise due to the negative ECS checks.   However, it upheld his indirect discrimination claim (as well as his unlawful deduction from wages claim) on the basis that an earlier EAT judgement had clarified that the UK’s right to work checks laws are not relevant to establish such a person’s right to work (see Okuoimose).  The Home Office Guidance clarified this position.  Accordingly, it may not be a proportionate means of achieving a legitimate aim to insist on a positive employee checking service check from a family member of an EEA national. Though acknowledging this may place employers in a difficult position in view of the significant penalties they could face for illegal working under UK law, this is a separate point.

This case was complicated by arguments as to employment status (the individual was actually engaged as a self-employed consultant and successfully challenged that status in the Employment Tribunal); query if the result would have been different if the employer treated him as an employee and followed a fair SOSR dismissal process. In any event, this case serves as a reminder to employers not to ‘jump too early’ when deciding that an employee’s employment is illegal, notably if seeking to rely solely on the results of an employer checking service check.

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