Rising Numbers Of Long-term Migrants In The UK Are Being Told They Cannot Work Anymore
The Law Of... treating employees fairlyAs a diverse, multicultural country, the UK's workforce is made up of individuals from different backgrounds and locations.
However, after the Home Office issued guidance on right to work checks this year, our Immigration team
has seen a rise in the number of workers with indefinite leave to remain who are being told by their employers that they can no longer work for them.Emma Brooksbank
, Partner and Head of Immigration (Leeds), Ashley Stothard
, Paralegal in Immigration, and Linda Stewart
, Partner and Head of Employment Law
, discuss why this is happening and the consequences employers might face for unfairly dismissing employees.
Right To Work Guidelines
In July 2016, the government issued new guidance on right to work checks, which employers need to perform before they hire a new employee, the move was designed to curb the number of illegal workers in the UK. The punishments for employers who are found with illegal workers on their payroll are now much stricter than before – they can face serious fines or even prosecution. This has inevitably led to employers thinking twice before hiring workers who aren't British, and questioning the status of existing staff from outside the UK.
Although the guidance aims to protect employers and prevent illegal workers from being exploited, it doesn't take into account the rights of workers who have been granted indefinite leave to remain.
Should I Stay Or Should I Go?
Individuals who have been given indefinite leave to remain in the UK are not subject to any conditions on their stay in the UK and are able to live and work in the UK on a permanent basis.
However, as Ashley points out, the new right to work guidance is missing key information relating to the evidence that migrants can use to prove that they can legally work in the UK:"The list of documents that employers can use to verify the status of potential employees no longer includes old passports with stamps or vignettes, which prove an individual has indefinite leave to remain.""Consequently, individuals who are allowed to work in the UK and want to secure a job are having to apply for biometric residence cards from the Home Office to satisfy employers of their right to work. This is unreasonable and unfair and we feel that any decision not to employ a person or to dismiss a person when they have a right to work ought to be challenged.""If they have a right to work and have evidence of this, it's illegal for employers to fire an employee."
Whilst employers might think that being overly cautious about hiring, or retaining, staff who aren't British will safeguard their business, any dismissals that are made on unfair or discriminatory grounds will land them in serious trouble.
Linda comments:"Employers should exercise caution before dismissing employees for reasons connected with their immigration status. Employees with 2 years’ continuous service are protected under the law and could bring claims for compensation in the Employment Tribunal. Dismissing an employee who has indefinite leave to remain could, in addition, expose employers to claims of unlawful race discrimination.""No employee should be subjected to dismissal or unfavourable treatment of any kind because of colour, nationality, or ethnic or national origin. If you have the right to work in the UK and you are dismissed for one of these reasons, we're prepared to fight for your rights and help you seek the justice that you're entitled to."