Right to work checks - It is not reasonable for an employer to rely wholly on the Home Office’s Employer Checking Service

Facts

Mr Badara was employed by Pulse Healthcare Limited as a healthcare support worker from 15 February 2013 until 17 November 2015.

Mr Badara, a Nigerian national, came to the UK in 2003 and married an EEA national in the UK. Although he and his wife had separated, he remained married to her at the time the events took place. Mr Badara therefore had the right to work in the UK, courtesy of the Free Movement European Directive 2004/38/EC and the related provisions of the Immigration (European Economic Area) Regulations 2006 (the EEA Regulations). The benefits of the EEA Regulations are automatic, meaning that EEA nationals and their family members have the right to live and work in the UK with no obligation to obtain documents from the Home Office. 

All employers in the UK have a responsibility to prevent illegal working and they do this by conducting right to work checks before employing someone. The Home Office guidance provides a list of acceptable documents which the employee can present to their employer for a valid check. A valid check will allow the employer to establish a statutory defence against a civil penalty should the employee not in fact have the right to work.

In addition, it was a term in Mr Badara’s contract of employment that he “[was] required to produce evidence of [his] eligibility to work within the United Kingdom forthwith upon Our request. In the event that the circumstances of such Employee changes in any manner that might affect their continued eligibility to work in this country, the Contractor shall immediately inform us of the details.”

Mr Badara held an EEA family residence card which was an acceptable document for right to work check purposes. This provided Pulse Healthcare with a statutory defence until 20 January 2015 when the document expired. Despite reminders from Pulse Healthcare to submit a further application to demonstrate his right to work, Mr Badara waited until the day of expiry to submit his application for permanent residence. As his EEA family residence card had expired, he was suspended from work without pay from 21 January 2015.

On 9 March 2015, Mr Badara received a certificate of application from the Home Office and this was presented to Pulse Healthcare as his proof of right to work while a decision was awaited on his case.

However, under the Home Office’s right to work guidance, a certificate of application will only establish a statutory defence when combined with a positive verification notice from the government’s Employer Checking Service (ECS). The ECS request was submitted to the Home Office on numerous occasions but each response was negative. It is not clear why these checks came back negative.

The negative ECS checks incorrectly stated that Mr Badara did not have the right to work in the UK and contained severe warnings to Pulse Healthcare that continuing to employ him risked civil and criminal offences. Pulse Healthcare therefore maintained the suspension without pay and Mr Badara filed a claim with the Employment Tribunal for direct discrimination, indirect discrimination and unlawful deduction of wages.

Tribunal decisions

At the First Tier Employment Tribunal, it was held that it was reasonable for Pulse Healthcare not to provide Mr Badara with work following a combination of the negative verification notices from the ECS and Mr Badara’s failure to comply with his contract of employment and provide documents proving his right to work. Following this judgment, Mr Badara’s employment was terminated.

Mr Badara appealed to the EAT.

The EAT dismissed the claim for direct discrimination, finding that there was no suggestion of any substantive problem in the employment relationship before the right to work concerns and that Pulse Healthcare’s desire to avoid penalties was a natural one, particularly in light of the severe warnings it received in the negative ECS checks. The EAT found in favour of Mr Badara however for indirect discrimination and unlawful deduction of wages. Their reasoning was that, following the EAT decision in Okuoimose, Mr Badara did in fact have the right to work at all times as a matter of law under the EEA Regulations and the Home Office right to work guidance informs employers of this. That he could not provide relevant documentation was therefore irrelevant and it was not proportionate for an employer to rely on the Home Office’s ECS when pursing a legitimate aim of immigration control.

Commentary

This is a troubling decision, highlighting the difficult position employers can find themselves in when they are required to consider the status and right to work of a non-EEA family member of an EEA national. Employers must have both an in-depth knowledge of the EEA Regulations and the personal circumstances of the employee in these situations.

It also emphasises the predicament where an employee’s right to work is automatic (such as is the case for EEA nationals, the family members of EEA nationals and British nationals), but documents are not available to prove this and so an employer cannot establish a statutory defence. Right to work checks are increasingly reliant on online confirmation from Home Office records and this may become particularly relevant from 1 January 2021 when EEA nationals are likely to be subject to increased immigration controls. Under the EU settlement scheme, their immigration status is entirely virtual and if the ECS cannot provide accurate data, employers will be placed in a difficult position. This EAT decision suggests that tribunals will favour the employee’s right to work over the employer’s desire to establish a statutory defence.

This is a complex area of law and employers are strongly advised to seek legal advice where such a situation arises. Employers should also keep in mind that:

• the Home Office’s ECS may not always be accurate. The EAT expressed concern that the Home Office was incorrectly advising Pulse Healthcare that Mr Badara did not have the right to work when he in fact did and had even issued a certificate of application to that effect;
• the right of workers with limited leave to remain in the UK can vary over time. Employers should be mindful of events that could impact an employee’s right to work in the UK. In this case, had Mr Badara’s marriage ended during the period in question he would not have had an automatic right to work in the UK as a matter of law; and
• having a robust right to work check policy in place will be helpful when establishing both an employer’s and an employee’s obligations in these situations. Employers should also ensure that it is a term of the employment contract that employees be required to present specific Home Office approved right to work check documents. In this case, Pulse Healthcare only required that employees “produce evidence” of a right to work which was a very widely drafted clause and rendered them unable to rely on a claim for breach of contract.