< Back to Need to Know - Issue 4 2016

Unfair Dismissal – Employer’s genuine and reasonable belief in employee’s right to work in UK

Fri 03 Jun 2016

Nayak v Royal Mail Ltd

Mr Nayak has been working for Royal Mail since January 2008. In May 2014 his employment was terminated because Royal Mail believed that he no longer had the right to work in the UK.

Visa issues had surrounded Mr Nayak’s employment from the beginning. When he started at Royal Mail, Mr Nayak held a visa that expired on 15 April 2009. He was subsequently granted a Tier 1 (Post-study) visa that expired on 1 December 2010. Prior to expiry of the post-study visa, Mr Nayak applied for a Tier 4 (General) student migrant visa. His application was initially refused, but following a successful appeal to the Immigration and Asylum Tribunal, his application passed to the Home Office for consideration and processing.

Royal Mail had a policy to check on the status of employees’ pending visa applications every six months which it applied to Mr Nayak. In March 2012, the Home Office confirmed to Royal Mail that the employee had the right to work, based on the outstanding appeal. Mr Nayak had not responded to any of Royal Mail’s letters of enquiry about his application status.

By May 2014, Royal Mail had become increasingly concerned about Mr Nayak’s immigration status and made further enquiries. As it has been over four years since the original application, and Mr Nayak had failed to provide any update or information about his status, he was warned that he might be dismissed unless he could provide the required documentation. 

At a meeting on 8 May 2014 Mr Nayak failed to produce any of the required documents and he was subsequently dismissed on 9 May 2014. He appealed the decision and was given a further 42 days to provide the information but he failed to do so. He also made no attempt to contact the Home Office. His dismissal went ahead and Mr Nayak brought a claim for unfair dismissal in the Employment Tribunal.

The ET dismissed the claim on the basis that there was insufficient evidence available to the Respondent, at the time of the dismissal, about the Claimant’s immigration status and a reasonable employer would not be satisfied that the employee’s visa application was still pending.

On appeal, the Claimant alleged that the dismissal was because of a statutory restriction and that this required his employer’s actual knowledge that his continued employment would breach a statutory enactment.

The EAT upheld the ET’s decision that Royal Mail’s genuine and reasonable belief that Mr Nayaks visa application was no longer pending was sufficient to show that a dismissal for some other substantive reason (SOSR) was both substantively and procedurally fair under the circumstances. It found that Royal Mail’s policy of checking every six months and its subsequent enquires were reasonable.

This case is important for employers because it highlights the distinction between a dismissal for breach of a statutory duty which requires the employer to have actual knowledge that continued employment will result in breach and SOSR dismissals where an employer’s reasonable belief about a breach of statutory restriction may be sufficient.

For more information on this article please contact the Employment Team.       

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