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17 June 2016

Nayak v Royal Mail Group Otd UKEAT/0011/15

In Nayak v Royal Mail Ltd UKEATS/0011/15, the EAT upheld an employment tribunal's conclusion that an employer's genuine and reasonable belief that an employee was no longer entitled to work in the UK was sufficient to show that a subsequent dismissal was for some other substantial reason. They also held that the dismissal was both substantively and procedurally fair.

Facts

Mr N was employed by Royal Mail between January 2008 and May 2014. On commencement of employment, Mr N held a visa that subsequently expired on 15 April 2009. He was then granted a Tier 1 (Post-study) visa that expired on 1 December 2010.

Prior to the expiry of the Tier 1 visa, Mr N applied for a Tier 4 (General) student migrant visa. Although the application was initially refused, after a successful appeal in May 2011, his application passed to the Home Office for consideration.

In order to minimise the risk of employing someone who has lost their right to work in the UK, Royal Mail carry out visa checks on employees every 6 months. So in March 2012, Royal Mail sought confirmation from the Home Office that Mr N held a valid visa. They stated that Mr N had the right to work in the UK “on the basis of an outstanding appeal”.

Over the next 12 months, Royal Mail repeatedly wrote to Mr N asking him to provide updated proof of his right to work in the UK. However, Mr N was still waiting to hear from the Home Office as to whether his visa would be granted. Therefore, Royal Mail received no response from Mr N.

Between December 2013 and May 2014, Royal Mail made further extensive enquiries into Mr N’s immigration status. He was told that as it was over four years since his original application had been made, Royal Mail could no longer assume it was still pending. As a result, they warned Mr N that unless he provided proof of his immigration status he would be dismissed. In May 2014 following a meeting with Royal Mail, Mr N was given a letter detailing his dismissal – which he appealed.

He was subsequently granted a further 42 days to provide the requested documentation and Royal Mail even suggested that he make a data subject access request to the Home Office to ensure he receive confirmation within the deadline. Mr N did not contact the Home Office.

Royal Mail, in the belief that he no longer had the right to work in the UK, terminated his employment in fear that they might be reprimanded.  Mr N brought a claim for unfair dismissal.

The Employment Tribunal The Employment Tribunal dismissed the claim on the basis that there was sufficient evidence to conclude that a reasonable employer would not be satisfied that Mr N’s visa application remained pending and undetermined. Mr N appealed against the decision.

The Employment Appeal Tribunal

The Employment Appeal Tribunal dismissed the appeal based on the uncontradictable nature of the evidence. There were four key factual aspects to support Royal Mail’s genuine and reasonable belief that Mr N had lost his right to work in the UK:

First, the enquiries made by Royal Mail of the Home Office prior to dismissal demonstrate a serious attempt to discern Mr N’s immigration status.

Second, Royal Mails subsequent inability to obtain a direct response from the Home Office providing up to date information of Mr N’s immigration status.

Third, the repeated requests made of Mr N over a long period of time.

Fourth, Mr N’s persistent failure to co-operate with Royal Mail understandably gave the impression that he was hiding something, as the Home Office would have been under a duty to respond to any request made by him.

Therefore, Royal Mail could show that a subsequent dismissal was for some other substantial reason (SOSR) and was both substantively and procedurally fair.

Comment

This case demonstrates the important distinction in threshold required when dismissing in these circumstances. Dismissal because of statutory restriction under section 98 (2)(d) of the Employment Rights Act (where they have no authority to work in the UK) requires an employer’s knowledge that continued employment would result in a breach, whereas ‘Some Other Substantial Reason’ dismissals under section 98(1)(b) only requires an employer to have held a genuine and reasonable belief about a breach of a statutory restriction.