The employee in this case was married to an EEA national. This gave her the right to reside and work in the UK. However, a Home Office stamp in her passport confirming this had expired.
The employer believed that the expiry of the passport stamp rendered her contract of employment illegal and fearing that it could be fined for employing an illegal migrant worker suspended her without pay until the UK Border Agency was able to provide evidence of her eligibility to work in the UK. The employee subsequently brought a claim for unlawful deductions from pay over the suspension period. The Employment Appeal Tribunal, allowing her claim, said that the question that had to be asked was whether the contract was illegal, not whether it was thought to be illegal.
The EAT was satisfied that the employee in this case was entitled to work in the UK at all times and this was not affected by the failure to obtain a new stamp in her passport. It was, the EAT said, irrelevant whether the employer was behaving reasonably, or thought it was behaving reasonably, or that it was worried about penalties.
Employers who employ foreign nationals may find themselves in a difficult position following the judgment in this case. Employing someone who doesn’t have the right to work in the UK is a serious matter carrying a penalty of up to £10,000 per illegal employee. However, if an employer wrongly suspends or terminates the employment of a member of its staff it could result in having to pay them compensation. Checks should not, therefore, be limited to the mere checking of an employee’s passport and legal advice should be sought when in doubt.
