Hello and welcome to this final installment off this webinar Siri's on the right toe work. I'm Veneman. What? I'm a barrister practising civil Andi public law at the 36 Group in London. So we have bean through already four parts to this webinar Siris on, and I hope that you've gone through them all. If you haven't, it's probably worth doing that in order to fit what I'm about, say into the wider context just to recap briefly. Part one was looking at the statutory framework off the right to work. Part two looked at how employers should act when they suspect that a person is working illegally. For them, Part three looks. It's four different scenarios that an employer can be faced with by the end off their investigation into whether a person has the right to work. Onda Part four WAAS. Looking at the problem areas, three problem areas which employers are likely to struggle with in practice or at least experience suggests can arise and lead to difficulty. And now we are going into case law. I'm very conscious that with a topic like this, that sort of straddles two different areas of law employment and immigration. Some of you will be watching with experience of neither of these areas. Some will have experience one area, not the other. So forgive me if some of what I say is basic to you. It may not be basic to others, but I'll try to keep the basic stuff brief. I've gone into a bit more detail in the in the hand out, so you can always refer to that Andi Chase up references and inform yourself about it in a bit more detail. So the main areas off difficulty, I think, with employment law cases in the right toe work is where employers have taken decisions to sanction on employees on the basis of what they've discovered through conducting right to work checks. On the more common sanction is dismissal. So that's something that we see quite a lot. Of course, that employee has the right not to be unfairly dismissed. That's not to say that every person is an employee, of course. In Part One, I was talking a bit about employment status, and I also have a separate Siris on data law about the gig, economy and employment status. So that goes into quite a lot of detail about the different categories off employment relationship that exists and are recognized under the UK law. So it may be that any given person who is dismissed for lacking right toe work could be either an employee could be a worker or actually could be a self employed independent contractor. If they're a self employed independent contractor, they won't have any right to bring a claim in unfair dismissal. Likewise, if there a worker, if they're employed, if they're an employee, they might have the right to bring a claim for unfair dismissal in the employment tribunal. But that depends on whether or not they meet what's called the qualifying criteria. So the most widely applicability one is, of course, the two year service requirements. So it used to be one year that was raised. I believe in in 2012 to a period of two years. Continuous employment before person qualifies for the right to be protected, too, that protected against unfair dismissal, Andi. However, there are some circumstances in which a employees, regardless of how long they've bean, employed Andi, even if they've got less than two years, continuous service may bring a claim for unfair dismissal if they have, if they have Bean dismissed for what's called an automatically unfair reason. And that tends to apply to cases such as when someone is dismissed for trade union activity or for making what we call in employment law parlance and protected disclosure i e. A whistle blowing situation. But those are less relevant to the case law in this area. The most relevant point. I think his look for the two years continuous service if they don't have. If you're advising employees who doesn't have two years continuous service than they simply don't have the protections that's come with the Employment Rights Act Section 98. The other thing to bear in mind is in terms of discrimination claims, which of course may well be relevant in right to work checks. Claim to race discrimination or discrimination against person on the basis of their nationality or their origin is that it does not require the person to have any continuous service. Employees who is discriminated against can bring a claim against their employer regardless of how long they've been working there. And indeed, persons can even bring claims if they haven't been employed. But they're discriminated against at the points off recruitment, pre employment discrimination. So with those basic building blocks in mind turning to some of the case law then so the first point to make from the case law is on it will be familiar to those of you who want to let. The previous session is that there is no need for the employee to prove produce specific documents. It may well be helpful for an employee to produce documents and official documents. Don't get me wrong. But in law, the requirement is for the employer to establish that it has a statutory excuse. There's no requirement on the employees to produce a valiant current document, So the first case is according Primoz Andi City Facilities Management UK. Please forgive me if I have mangled the pronunciation off the claimants name, I'll do my best with it. But anyhow, the claim it in this case was a cleaner in and as the store on her claim was based on unlawful deductions off her wages. Eso that's that was under Section 13 off the Employment Rights Act. Now the situation was that she was a non e a national. She was Nigerian Onder, her partner was Spanish so any a national Andi, the in law. She had acquired the right as a direct family member off her spouse at the right to permanent residents to reside and toe work freely in the UK, as in other member states, Andi. To that end, she had obtained a permanent residence card. It was put into her passport and it contained an expiry date, as these permanent residence cards do. When the expiry dates came around, her employer suspended her, presumably believing that the suspension would somehow prevent her from being classed as someone working illegally for them. Those of you who watched and we're paying attention to my discussion in the early parts of this webinar Siri's may have some views on that. What do you think? Do you think that that the act of suspension prevented the claimant from being classed as an illegal worker if she waas in fact illegally working under section 15? Well, the answer, in my view, is no suspension doesn't change a thing. A person is still employees. When they're when they're suspended, they don't magically stop working. Indeed, they will sometimes be paid during a period of suspension, but anyhow, that's what this employer chose to do. They in the meantime, she applied for a residence permit. Andi, the respondent, investigated now the home office when the respondent contact in the home office weren't in a position to confirm or didn't confirm, that she had made an application. So unfortunately, the respondents position was that she couldn't prove that she had the right to work and that she had to be dismissed. So they took robust and swift action to dismiss her. On the same day off her actual dismissal, she had obtained and provided to the employer a document which confirmed that actually, she was a permanent resident, Andi, that she had the right to live and work in the UK As a result of that, they took her back on. But what they didn't do was they didn't give her back pay for the period of suspension. Prior to the letter that she had produced so effectively, she had Bean underpaid in her claim. That was her claim to the employment tribunal the Employment Tribunal found in favor of the employer. They found that she had not produced satisfactory documents to show that she had the right to work. She had to do so under Section 15 according to the tribunal judge on Therefore, her employment had become illegal. She could not rely upon the illegal contract of employment in order to make good a claim under Section 13 off the Employment Rights Act for unlawful deduction from wages. Now the claimants unhappy with that decision went to the employment appeals tribunal Andi, the E 80 found in her favour. Andi overturned the decision of the tribunal and the reason for that then it's quite simple is that under earthy citizens directive So the European free movement law that applies she had the right to live and work in the UK she had acquired a permanent right of residence that right had not Bean lost on the expiry off her Permanent Residents card. The permanent residence cards simply is documentary evidence of the underlying right, which is inherent once she has acquired it. And so. But the tribunal, interestingly, also looked at Article 25 off the Citizens directive, which includes reference to forbidding member states from making it a prerequisite to the exercise of the right of permanent residents or the completion of a bureaucratic process, um, making it prerequisite to possess or produce a permanent residence card. So again, that the European regime is relatively relaxed around the necessity off pertaining the documents you don't need to obtain the document. There's no compulsion to do so on member states themselves should not be compelling people to need to acquire these documents. It's optional. You still have the right, even if you don't have that document or if your document has expired. And in fact, immigration practitioners will be familiar with the fact that once acquired the right of permanent residence is something that is not lost easily. There are very, very specific circumstances in which a person loses that right. Andi expired residence. Carly's is simply not one of them doesn't come anywhere close. So the Employment Appeal Tribunal also found that it was completely relevant for the judge to consider that thing. Employer was under the threat of a penalty under Section 15 that's relevant. The reasonableness of their behavior is relevant factors. There was a legal contract of employment. She had the right to work at all times, linked to her underlying free movement rights of European law on therefore, she was entitled to back pain. And it's that simple, so worth bearing in mind when that case, when you come across if and when you come across European nationals or European family members of EU nationals who are affected by, or or advising employers in these circumstances, where the right to work becomes an issue. The second category of cases which were going to be discussing our mistake cases. So what happens if an employer concludes that someone doesn't have the right to work when in actual fact, the reality is they do have the right to work and what happens in particular when that person is dismissed? So the general principle, which has been well established, is that where an employer has a genuine but mistaken belief that a person does not have the right to work, then that can actually be the basis off what we call some other substantial reason to justify dismissal. And that's by reference to Section 98 subsection one subsection B off the Important Rights Act 1996. So under that scheme, for those you less familiar with it, they were basically four reasons for dismissal on the the main two that are relevant to this context are both conduct. So if a person has conducted themselves in a way that is in breach of the employment contract. Secondly, if the performance of the contract of employment would infringe an act of legislation so effectively illegality, if the contract is illegal, that may justify dismissal or alternatively, some other substantial reason may justify dismissal. That's a bit of a catchall category for anything else that doesn't foot fit within the other three reasons for dismissal. So in the case of Bush Allah on Trust House Fort Hotels LTD. Basically in that case, the employer dismissed the employee on the basis off advice it had received from the Home Office, no less so. Here is a case where, unfortunately, the Home Office's system for advising employees employers with authority of well informed guidance has fallen down pretty badly because, in actual fact, the claimant in that case was not working illegally and have the right to work. But nevertheless, the employer's decision to dismiss was found to be based upon some other substantial reason. They had conducted themselves in a fair and reasonable manner, and of course, the tribunal would have taken into account that they took advice from the very authority that manages this entire process and manages immigration control in the UK, So it would be pretty hard for an employer to not be able to rely upon that form of advice, at least in most circumstances that will come back to when it might become unreasonable to do so in a moment. There's also the case off. Crusoe, Va. Andi London Borough Off Hounds Lowers 2007 case Court of Appeal case and again, very similar facts. Broadly speaking, to which brew Charla And that's again, where an employer dismissed the employee having Bean miss advised that, uh, the employees had no right to work. Now we come to an interesting case here. Baker and Abello London A more recent case from 2017 on this is, ah, Employment Appeal tribunal case, where the employer dismissed an employee who had what we call the right of abode in the UK so that is a right to live and to work in the UK It's outside of the immigration rules but derived from essentially rights that are similar to citizenship. So British citizens have the right of abode in the UK. Other citizens, Commonwealth citizens, depending on certain criteria, may also qualify for the right to abode, if not the right of citizenship. So Mr Baker didn't require leave to remain or enter in the UK, and that is a key point to bear in mind. He had produced a Jamaican passport to his employer, the bus company of Belly Oh, but his employer asked him to make what we call a no time limit application. That's an application that you can make for a little stamp to be put into your passport. That says that you have no limit on how long you can stay in the UK, so it's just another official form for verifying that a person has a form of indefinite. Stale doesn't doesn't have to leave the UK at a specific time. Now, Mr Baker, for reasons that I'm not sure about, decided that he didn't want to do that. So he refused to make her no time limits application. It might have been to do with the cost. Who knows? The employer then took advice from the home office. So this is where we come back to the Bush Allah on Prusova Point on the Home Office suggested that although Mr Baker had the right toe work, that he hadn't provided sufficient documentary's evidence to the employer to give the employer a statutory excuse to a civil penalty so slightly confusing advice, really Now the employer then took a decision that, well, if we don't have the statue excuse, we're going to be find. We've got to do something about it. We're gonna dismiss it. The employees appeal. Mr. Baker's appeal to the Employment Appeal tribunal was successful on the basis that the genuine but mistaken belief of the employer that that Mr Baker was working illegally was not reasonable in the circumstances, it may have constituted some other substantial reason for dismissing the employees. But again, remember that in an unfair dismissal case, you've not only the employees not only got to show that the reason for dismissal is is justified, but that the actual decision to dismiss was reasonable and fair in the circumstances. And it simply wasn't reasonable and fair in the circumstances to dismiss Mr Baker, where the Home Office had even said that he had the right to work. Yeah, and he had the right of abode in the UK. So again we come back to this fundamental point. There's no requirement on an employee toe have to produce a specific document. The system is not that bureaucratic for certain categories off persons on for persons with the right of a Bose that is the same as a right toe work. So Section 15 isn't even engaged. So it's also important, I think, for employers to make sure they document carefully any discussions they have with the Home Office, because the tribunal may be invited to examine how reasonable those discussions were, both on the employer side and also the home office side. Finally, just to wrap up there is one more case are mentioned in its case of Nyack, Andi Royal Mail Group LTD. 2016. It's a slightly different Cates set of fact, which involved a situation where the employee was deliberately failing to comply with the employers, enquiries and right to work investigations. Andi, the important employees could have Bean expected to obtain a certain information but didn't do so on. Therefore, it was genuine and reasonable for the employer to dismiss the employees in those circumstances, even though in the end, it turned out post dismissal that the employee did have the right to work. If someone just simply simply doesn't cooperate with these checks, and employer can't be expected to take no action whatsoever. And so therefore, there will be circumstances in which a dismissal is fair against employees who refuses to cooperate. That brings us to the end of the whistle stops to tour through the case law, employment case law on right to work. It also brings us to the end off this Siri's on the right toe work. I hope you've gotten something valuable from it. It's interesting area. I think it's really going to be heating up as Brexit proceeds is a process. And as the rights off, for instance, European nationals, the family members, the other family members of European nationals, persons who haven't registered or or documented themselves as British citizens, all of those persons rights will at some stage be brought into question. So it's a good area to, I think, brush up on and make sure you've got the tools to advise both employers and employees accurately, or at least you know where to look in order to find them. So thanks again, I've Bean Benham Anwar on based at the 36 group in London Ont Thank you so much for tuning in. Please give some feedback, Comments, ratings Whatever you want. Say it'll helps me to improve what I do on here. Thanks again. Take care. Bye.
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