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Immigration has remained one of the “hot topics” dominating the news in recent weeks. Theresa May came under considerable pressure earlier this month after media reports that 100 Indian doctors had had their applications for Tier 2 work visas refused due to the cap on immigration put in place in 2011. Up to 40% of the annual quota for Tier 2 visas are issued to NHS employees, but the service still struggles to recruit and maintain sufficient staffing levels to deal with requirements.

Recognising that this is likely to increase as Brexit draws nearer, with a 28% increase in nurses and midwives from EU countries leaving the UK in 2017/18, the Government has announced this month that doctors and nurses will be excluded from the cap on skilled worker visas.

In other sectors, Brexit is making itself felt; a survey of the National Farmers Union reported that last year there was a 12.5% shortfall of workers required for seasonal work such as fruit picking, and reports so far this year have noted that recruitment companies are struggling to persuade workers from Eastern Europe to come to the UK for seasonal work instead of other European countries. Up to 99% of those who come to the UK to work on British farms on a seasonal basis currently come from Eastern Europe, but the sustainability of this model is now in doubt.

With these figures in mind it will have been a relief to employers and EU nationals working in the UK alike that earlier this month the Government outlined how the process of applying for “settled status” will operate for those EU citizens who wish to continue living in the UK after June 2021. The scheme will be trialled later this year and will fully open in March 2019. Individuals can apply via an Android app or by post, and will require to submit proof of identity, proof of residence, and to make a declaration regarding any criminal convictions, as well as paying a fee of £65. The proof of status provided to EU nationals will be electronic; physical documents will not be issued.

Even so, employers will be understandably wary of how the requirement to verify right to work in the UK will change and become more onerous after Brexit. An Employment Appeal Tribunal (EAT) case heard in April this year illustrates how employers can be put in difficult positions when they are caught between the contradictory requirements of immigration law on the one hand, and employment law on the other.

Facts of Case
In Mr F Azal v East London Pizza Ltd t/a Dominos Pizza, Mr Azal was dismissed because he had failed to provide his employer with evidence that he had made an application to extend his right to work in the UK. He was not offered the right to an appeal. Dominos argued that they had dismissed Mr Azal because they had formed a reasonable view that he did not have the appropriate permission to work in the UK, and any evidence lodged at appeal would not have affected the reasonableness of the view formed by the employer on the particular day in question.  At first instance, the Employment Tribunal agreed and stated that there was “nothing to appeal against”. The dismissal had not been unfair as it had been for a substantial reason, namely the belief that MR Azal could not legally be employed.

On appeal, Mr Azal argued that the opportunity to appeal “is a fundamental feature of good employment relations practice” and should be taken into account when assessing the fairness of the dismissal. Mr Azal had in fact had the right to work in the UK on the date he was dismissed and thereafter; an appeal would have given him the opportunity to provide evidence of this and he could have been reinstated.

The EAT agreed. Although Dominos had been justified in dismissing Mr Azal when they did as they had no evidence that he was entitled to work in the UK, and therefore had a genuine belief that employing him was prohibited by statute, this belief was in fact incorrect because Mr Azal had at all relevant times had permission to work in the UK. If he had been given the opportunity of an appeal he could have evidenced this to Dominos, who could then have reinstated him.  The appeal was therefore allowed and the case was submitted for reconsideration.

Comment
Employers may well feel that they are between a rock and a hard place when placed in such situations. It is a criminal offence to employ an individual where the employer has a reasonable belief that the employee is disqualified from working by reason of their immigration status. However, even where they have a fair reason for dismissing the employee, there are still employment law risks in relation to the procedure to be followed when doing so, as illustrated in the Dominos case.  While most employers will acknowledge that a right to an appeal will almost always form part of a fair process, it is difficult not to have a certain amount of sympathy for the belief that such an appeal would be pointless where continuing to employ the individual would apparently be illegal. Furthermore, in this case the employer had repeatedly reminded the individual that he required to submit evidence that he had made an application to extend his right to work and the employee did not do so. The evidence he eventually sent was not in a form that could be opened by the employer. A certain amount of contributory fault may well therefore be attributed to the employee in this situation.

With the immigration landscape post-Brexit still under review, and with many sectors already having difficulty finding staff to fill their positions, whether at the skilled end of the spectrum or in relation to seasonal work, it seems likely that right to work permits will be reviewed in the near future. A common sense approach to immigration in sectors that particularly struggle to fill roles from within the UK workforce will need to be taken. What route this will take remains to be seen. In the meantime, employers will want to ensure that they take care to comply with all the requirements under immigration law, while at the same time managing the risks in relation to employment law that these scenarios can throw up.

If you have any queries regarding any of the issues discussed in this blog please contact a member of the Stronachs Employment Team.

Annika Neukirch, Solicitor

Chambers Leading Firm 2019

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