Employer not entitled to rely on negative right to work check notice to withhold pay and work - Badara v Pulse Healthcare Limited

It is crucial that employers conduct right to work checks by carrying out a document check to confirm that employees and prospective employees have the right to work in the UK. A check enables an employer to benefit from the protection of a ‘statutory excuse’ in order to avoid a civil penalty for an illegal working offence under the Immigration, Asylum and Nationality Act 2006.

To obtain a statutory excuse, employers must check the employee’s original documents, as specified in the Home Office guidance. If the employee cannot provide the documentation specified by the Home Office, for instance if they have an outstanding application, the employer must use the Home Office’s online Employer Checking Service to obtain a ‘positive verification notice’.

The Claimant was a Nigerian national. As he married an EU national in the UK, he had the right to work under EU law. In January 2015, the Claimant’s EEA family resident card, confirming his right to work, expired. Following this, the Respondent mistakenly thought the Claimant’s right to work had expired on this date and stopped providing him with work and pay on the grounds he had breached his contract by not providing evidence of his right to work upon request. In actual fact, the Claimant’s right to work continued automatically under EU law.

The Respondent submitted several Employment Checking Service requests to establish the Claimant’s right to work, all of which came back negatively and wrongly indicated the Claimant did not have the right to work in the UK. The Claimant brought claims for unlawful deduction of wages and indirect and direct discrimination.

The employment tribunal (‘ET’) recognised that the Claimant did have an automatic right to work in the UK and that the Respondent had acted erroneously. It held however that in light of the penalties for employing an illegal worker, it was reasonable for the Respondent not to provide work and require proof of the Claimant’s right to work. The Claimant appealed.

The EAT decided that ET had erred in law by failing to consider:

• The case of Okuoimse, which held that the penalty scheme for employing an illegal worker does not apply in circumstances where the individual has the right to work in the UK.
• The Home Office guidance which expressly states that those with the right to work under EU law, do not have to register with or obtained documentation from the Home Office.

The EAT held in circumstances where the employee did in fact have the right to work under EU law, it would be sufficient for the employee to produce evidence that he was a family member of an EEA national and held a valid passport.

The EAT dismissed the claim for direct discrimination and remitted the claims for unlawful deduction from wages and indirect discrimination back to the tribunal for reconsideration.

The decision highlights that employers should act with caution when relying solely on the outcome of the Employer Checking Service for right to work checks. In circumstances such as this case, employers may need to conduct independent investigations into whether the employee has the right to work and legal advice should be sought if in doubt as to the correct approach. It is also advisable to implement a right to work policy containing the obligations of the employer and employee and remain mindful of events that could affect an employee’s right to work in the UK.