Immigration issues – unfair dismissal and migrant workers

Under the Immigration, Asylum and Nationality Act 2006, employers face significant penalties if they employ individuals who do not have a right to work in the UK. In Winful v Whitbread Group plc, the Employment Tribunal considered the case of a migrant worker whose visa expired after she had been employed for 5 years.

Whitbread employed Mrs Winful as a housekeeper from July 2005. Mrs Winful was Ghanaian, but had a right to work in the UK because she was married to Mr Dos Santos, a European Economic Area national.

In October 2010, Whitbread reminded Mrs Winful that her UK visa was due to expire and she needed to show the company that she had a continued right to work. It warned her that if she was unable to show the proper documentation, her employment could not continue. Mrs Winful applied to the UK Border Agency for her visa to be renewed.

Mrs Winful’s visa expired on 13 November, and Whitbread had a meeting with her. Whitbread learned that the UKBA had returned Mrs Winful’s application (she was having difficulty showing that she was still living with Mr Dos Santos).

Mrs Winful made a fresh application on 1 December. Whitbread dismissed her on 9 December 2010, on grounds that she was unable to demonstrate her right to work in the UK.

The ET rejected Mrs Winful’s unfair dismissal claim. It noted that between 13 November and 1 December, Mrs Winful’s visa had expired and she did not have a pending application for renewal. Whitbread reasonably believed that it would be acting illegally if it continued to employ her, and the dismissal was therefore fair for some other substantial reason.

This case is an example of how immigration statutes work in practice. The ET cited the case of Klusova v London Borough of Hounslow, where the Court of Appeal held that an employee is entitled to work in the UK if her visa has expired but she has a pending application that was made before its expiry. As Mrs Winslow’s original application was returned, she did not meet this test.

Liam Lane

Does a sanction short of dismissal on internal appeal remove the earlier dismissal?

It depends on whether the disciplinary policy requires the employee’s consent to a lesser penalty being imposed.

In the recent case of Piper v Maidstone & Tunbridge Wells NHS Trust, the EAT found that Mr Piper had jurisdiction to bring an unfair dismissal claim where at internal appeal stage, his employer overturned the decision to dismiss him.  Instead, they decided to demote him and transfer him to a new location. His employer’s disciplinary procedures were found to require Mr Piper’s agreement to such a sanction and in the absence of this consent, Mr Piper was still found to have been dismissed by his employer. 

This case is an important reminder to employers that disciplinary procedures which permit action short of dismissal (e.g. demotion or transfer), should not be reliant on employee agreement to such action. 

Anna Walker

Dismissing the doorman – fair dismissal of security supervisor who did not have a licence

In some sectors, employees are required to have certain qualifications or licences. In Cook v Wilson James Limited, the Employment Tribunal considered the matter of a security supervisor who was dismissed because he did not have a Security Industry Authority door supervisor licence.

Mr Cook was a security supervisor at London Science Museum. He was initially a museum employee, but after an outsourcing exercise his employment transferred to Wilson James Limited (“Wilson”). As a private security firm, Wilson was legally bound to ensure that all of its staff had the necessary security licences.

Mr Cook applied for a licence shortly after his transfer to Wilson, but his application was rejected by the SIA. Wilson suspended him from work and subsequently dismissed him, on the basis that he could not continue to be employed without a licence.

Mr Cook raised a claim of unfair dismissal. He complained that Wilson had not sufficiently investigated the possibility of finding him an alternative role, and had adopted an unfair disciplinary procedure.

The ET accepted that Mr Cook had been fairly dismissed for some other substantial reason, namely that he did not hold an SIA licence. It observed that most of the alternative roles in Wilson’s business were security jobs, in many cases requiring an SIA licence. It also noted that Mr Cook had not applied for any alternative positions. Although there were some deficiencies in the disciplinary proceedings, neither the decision to dismiss or the process followed fell outside the range of reasonable responses.

This case is an interesting example of an employee being dismissed for “some other substantial reason”. It also serves as a reminder that, when dealing with an employee who does not have the requisite qualifications or licences, it is best practice to consider the possibility of alternative employment before dismissing.

Liam Lane

Alcohol testing – with a fingerprint scanner?

It is being reported that a newly launched fingerprint scanner could be used to test employees’ alcohol levels. The new device measures alcohol content in the skin and gives immediate results. It has been developed by AlcoDigital, whose website raises the prospect of employers ‘testing every person, every day’.

However, even if there is a right to require an employee to be tested in an alcohol and drug policy or contract of employment, this right is limited.

If the testing is unreasonable, there is a risk of a constructive dismissal claim on the basis that the employer’s conduct has destroyed the relationship of trust and confidence. Random or systematic testing is unlikely to be lawful (other than for those working in safety critical areas). Health information should usually only be collected in the areas of highest risk.

In terms of the Data Protection Act 1998, collecting and relying on information about employees’ alcohol or drug exposure is only lawful if it satisfies certain conditions e.g. where it is necessary to protect health and safety or where the employee has given explicit consent. Further guidance on an employer’s data protection obligations when testing employees can be found in Part 4.4 of the Data Protection Employment Practices Code and its Supplementary Guidance.

Best practice is to carry out an impact assessment before testing employees which might involve:

  • Identifying the benefits to the employer and any adverse impact on the employees;
  • Considering whether there are any alternatives (e.g. health questionnaires or only testing when a potential issue has been identified);
  • Looking at how much information is given to the employees (who should know the potential consequences of the testing);
  • Deciding (and documenting) whether the testing can be justified.

While testing has its place in certain industries, employers need to be careful of their obligations to employees when doing so – regardless of the latest technology.

Julie Keir sign-off

Shares for rights: Parliamentary ping-pong

We predicted in our blog last week that shares for rights was going to happen.  What we could not predict was the parliamentary game of ping pong between the House of Commons and the House of Lords.

If you have not been following the passage of the Growth and Infrastructure Bill through parliament you may not know that Clause 27 of that Bill contains a proposal to introduce “employee shareholder” status whereby employee shareholders will relinquish certain statutory rights in return for shares in their employer with various tax breaks.

On 22 April 2013 the House of Lords defeated Clause 27 outright with an overwhelming number of peers continuing to voice serious concerns about the new status.  On 23 April the House of Commons voted to reintroduce the employee shareholder proposal but with a number of new concessions (explained below).  Yesterday (24 April), the Lords passed Clause 27.  So what concessions were made to get the legislation through?

Last week the government agreed to make it clear that jobseekers would not be forced to give up unemployment benefits if they refused to apply for, or turned down offers of, employee shareholder jobs.  Amendments made this week include a seven-day ‘cooling-off’ period, and companies making an offer of shares for rights will also have to provide a written statement setting out the rights that the employee is giving together with full details of the shares being acquired (details about voting rights, rights to dividends, any restrictions on the shares etc).

Finally, any company proposing to offer employee shareholder status will be required to provide free independent legal advice (and the company will have to meet the costs of that advice) regardless of whether the employee takes up the new employee shareholder status.  The legal advice cannot come from any lawyer connected with the company and must cover the terms and effects of the new employment status, including precisely what employment rights will be lost. 

Shares for rights will become law on 1 September 2013.

Nigel Watson

Partner and Head of Employee Benefits

Victimisation by new employer

In a recent Employment Tribunal claim, an employer was found to have victimised an employee by treating her less favourably due to a Tribunal claim she had raised against her previous employer.

Ms Bouabdillah resigned as Vice President for Deutsche Bank in 2011, and raised a Tribunal claim for sex discrimination, alleging that male colleagues had been promoted ahead of her and received larger bonuses. The case was settled out of court. Ms. Bouabdillah then went on to join Commerzbank. She was dismissed by them six days after her sex discrimination claim against Deutsche Bank became public. Ms Bouabdillah raised a claim for victimisation and direct sex discrimination against Commerzbank.

Commerzbank claimed that they had been suspicious about Ms Bouabdillah’s motivation for resigning from Deustche Bank and had made repeated enquiries of her recruitment consultant as to why she had left. They had been assured that the reasons for leaving was that she wished to move to a smaller team and to have more responsibility and recognition. Commerzbank then became aware of the Tribunal claim and felt that Ms Bouabdillah had caused a breach of trust and confidence because she made the deliberate decision to withhold information from them about her true reason for leaving her previous employment.

The Tribunal found that Ms Bouabdillah did not mislead Commerzbank; when asked direct questions, she gave direct answers. Even if these were not entirely full answers, it was not a matter of being misled or dishonest. The Tribunal also found that there was no evidence that she had neglected her duties or acted unprofessionally during her time at Commerzbank.

The Tribunal found that Ms Bouabdillah had been dismissed because she had brought tribunal proceedings against her previous employer and that, therefore, she had been victimised by Commerzbank. However, her claim for direct sex discrimination was dismissed. A Remedies Hearing is due to be held in September which will determine the level of compensation Ms Bouabdillah will be paid (she is apparently claiming £13 million).

This case shows that while post employment victimisation has recently been reported as not being covered by the Equality Act, clearly an employee can claim victimisation if their employer treats them less favourably because of discrimination claims made against a previous employer.

Verity Clark

Appeals all round – unfair dismissal and wrongful dismissal in the EAT

It is not unusual for an Employment Tribunal decision to be appealed by the losing party: according to the latest figures, the Employment Appeal Tribunal receives over 2,000 appeals per year. In some cases, both parties are unhappy with the ET’s decision and appeal it. This occurred in the recent EAT case of Camden and Islington NHS Foundation Trust v Boafo.

Camden and Islington NHS Foundation Trust employed Ms Boafo as a nursing assistant. The Trust summarily dismissed her for gross misconduct, on grounds that she had been caught sleeping on duty. Ms Boafo raised claims of unfair dismissal and also wrongful dismissal (in respect of her notice pay).

The ET dismissed Ms Boafo’s unfair dismissal claim but upheld her wrongful dismissal claim. It noted that the Trust had carried out a reasonable investigation and had reached a tenable conclusion that she was guilty of gross misconduct, and concluded that she had been fairly dismissed.

The ET concluded, however, that given Ms Boafo’s 28 years of unblemished service, summary dismissal was a breach of her contract of employment and she was entitled to 12 weeks’ notice pay. The Trust appealed the wrongful dismissal finding and Ms Boafo cross-appealed the unfair dismissal finding.

Ms Boafo argued that the ET did not consider whether summary dismissal was within the band of reasonable responses. The EAT reviewed the judgment, and noted that there was no reference to the ET addressing the question of whether dismissal fell within the band of reasonable responses. The Trust responded that since sleeping on duty was such serious misconduct, dismissal was the only reasonable response open to it. The EAT felt that this was something the ET had to decide, and so upheld the Claimant’s appeal and remitted the matter back to the ET.

In relation to wrongful dismissal, the Trust argued that there was ambiguity in the ET’s judgment as to whether it was accepted that the Claimant committed gross misconduct by sleeping on duty. Again, the EAT felt it was necessary to remit the matter back.

Although the legal issues in this case are reasonably standard, it is an interesting example of the appeals procedure, particularly as both parties had appeals upheld.

Liam Lane


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