Yes, but only if it is proved.. Mr Baker was employed by Abellio as a bus driver for three years before the employer realised that whilst Mr Baker is a Jamaican national with the right to live and work in the UK, he only had a passport to prove this and no visa documentation.
Although through research the company accepted that Mr Baker did have the right to work in the UK, they checked their opinion with the Home Office who incorrectly said that a passport was not sufficient evidence of this right.
As a result, Abellio summarily dismissed Mr Baker on the basis that continuing to employ him without having the correct documentation to prove his right to work in the UK would be unlawful.
Mr Baker claimed unfair dismissal.
The tribunal initially found in favour of the employer but Mr Baker appealed to the Employment Appeal Tribunal who overturned the tribunal’s decision, finding that Mr Baker had the right to work legally in the UK and there was no need to provide further evidence of this.
Abellio had wrongly believed it was illegal to continue to employ Mr Baker without visa documentation supporting his right to work in the UK and so was wrong to rely on ‘illegality’ as the reason for dismissal.
However, the Employment Appeal Tribunal did find that the company’s genuine but mistaken belief that it would have been acting illegally in continuing his employment could amount to “some other substantial reason” and thereby potentially a fair reason for dismissal.
This case reminds us that in order to fairly dismiss on grounds of illegality there must actually be an illegal act.
An employer’s reasonable but mistaken belief that continued employment is illegal will not be sufficient.
Employers should ensure a robust investigation to ensure that there is illegality in such situations before jumping to a decision on simply a belief.