Right to work checks…..strict interpretation may catch out many employers

The case of Badara v Pulse Healthcare Limited involved a Nigerian national, Mr Badara, who was the spouse of an EEA national living in the UK. Mr Badara entered a consultancy contract with Pulse Healthcare in 2013 and before he started work, he presented a UK Residence card to evidence his right to work in the UK. 

This UK residence card expired on 20 January 2015 and with no further documentation to provide otherwise, Pulse mistakenly believed from that date that Mr Badara did not have the right to work. Pulse refused to provide Mr Badara with work, and therefore pay, after this time. Mr Badara informed Pulse that he had applied for an extension of his residence card but a series of further checks by Pulse with the Employer Checking Service (ECS) came back negative. In October 2015, he received a new residence card confirming a permanent right to reside in the UK but Pulse proceeded to terminate his contract in November 2015. He sought to recover lost wages as well as direct and indirect discrimination on the grounds of race and/or nationality.

Initially, the tribunal stated that Pulse had been reasonable to require proof of eligibility in the form of positive ECS checks, especially in light of the civil penalty rules. They also considered Mr Badara's employment status and despite the terms of the consultancy arrangement, it was decided that in reality, he was an employee. Whilst Mr Badara's employment status was not challenged at appeal, the Employment Appeal Tribunal did consider appeals in relation to his other claims. The EAT decided that an employer could not rely on a negative verification notice from the Home Office, when in fact the individual had an automatic right to work as a family member of an EEA national. As such, it was arguable that providing evidence that he was still a family member of an EEA national and held a valid passport, would have been sufficient.

The Right to Work guidance is clear that as the non-EEA family member of an EEA national, there was no requirement for that non-EEA national to register or obtain documentation from the Home Office in order to prove their entitlement to work in the UK. Previous case law had also clarified that the civil penalty rules were irrelevant for family members of an EEA national whose right to work in the UK was automatic and this had been ignored by the original tribunal.

This case was remitted back to the same tribunal to reconsider its decision in light of previous case law and the Right to Work Guidance. The direct discrimination claim was dismissed based on Pulse's only concern being to avoid civil penalties and this was considered to be a truthful explanation.

Whilst this case does not tell us anything new about immigration status, it is a stark reminder that right to work checks can be a challenging situation for employers and whole heartedly relying on the outcome of the ECS could lead to additional employment claims. This is one of those cases where had the employment status been correctly identified from the outset i.e. Mr Badara was an employee, it could have been open to Pulse to dismiss him for "some other substantial reason" since it has reasonable grounds to believe that he did not have the right to work in the UK, even though its understanding was mistaken.

It must not be forgotten that it is a criminal offence to knowingly employ an illegal migrant and this includes an employer having "reasonable cause to believe" the person is working illegally. Therefore, whilst follow up checks are required, the document to evidence a right to work as in the case of non-EEA family members of EEA nationals, can be far less onerous than those with time-limited permission to work in the UK. It is important that employers take relevant immigration and employment law advice to assess the risks and the best course of action to take in such circumstances.

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