Employers must take action if they discover that an employee does not have the right to work in the UK, or if their immigration status is about to expire. Dismissing the employee may seem like the right thing to do, but it’s important to act cautiously and in compliance with the law to avoid criminal or civil penalties.

WH Solicitors provides employers with clear guidance on how to go about dismissing employees with visa problems, and set out all the options available to them. By providing our clients with comprehensive and unambiguous advice, they are able to avoid unfair dismissal claims while ensuring compliance with the Immigration Rules.

If you’re concerned about dealing with employee visa problems, we can help.

Employee Visa Issues – The Law

UK employers are duty-bound to prevent illegal working, and must take sufficient steps to check that all prospective staff have the right to work in the UK before they commence their employment. If an employee has the right to work in the UK indefinitely, no further checks will be required. In cases where an employee has limited leave to work in the UK it’s necessary to conduct more regular checks.

Migrant workers could lose their right to work in the UK as a result of their visa running its course, or where it expires as a result of a change of circumstances (for example, where a relationship upon which the visa is based breaks down).

If an employer finds that an employee does not have the right to work in the UK, they risk a civil penalty of up to £20,000 per unlawful worker, and criminal penalties may even follow. In these circumstances, employers should act to terminate the contract of employment for the relevant worker – especially if they are a licenced sponsor as their status could be put at risk.

What does the law say about dismissing employees?

The danger that employers face is whether their actions to end the working relationship will give rise to an unfair dismissal claim. To fairly dismiss an employee, it is necessary for an employer to show that they have a valid and justifiable reason for the dismissal, and that they acted reasonably given all the relevant circumstances.

In cases where an individual does not have the right to work in the UK, employers may be able to rely on this fact as a fair reason for dismissal. Conversely, an employee who has the right to work in the UK but is unable to provide the necessary documents to prove it may be able to launch a successful unfair dismissal claim unless the employer can establish that another reasonable ground for dismissal existed.

Section 98 of the Employment Rights Act 1996 sets out some of the valid reasons for terminating an employment, including:

• Redundancy
• Conduct or capability issues
• Breach of a statutory restriction
• Another substantial reason

It follows that an employer may be able to fairly dismiss an employee without the right to work in the UK on the grounds that continuing to employ them would break the law. Even in these circumstances, it is still necessary to follow the correct dismissal process to prevent the risk of an unfair dismissal claim.

Before dismissing an employee, it’s therefore important for employers to complete a full investigation and explore all their options. These steps must be taken at pace to ensure that the risk of illegal working is minimised while complying with all necessary employment law provisions.

When Should You Dismiss an Employee Over Immigration Issues

To fairly dismiss an employee who does not have the right to work in the UK, an employer should conduct a full investigation into the employee’s immigration status to establish all the relevant facts.

This should include use of the Employer Checking Service to determine whether the employee has the right to work in the UK, along with an audit of the employee’s file to ensure that all records of their immigration status have been properly kept.

If, following use of the Employer Checking Service it emerges that an employee does not have the right to work in the UK, employers have a 28-day grace period following the expiry of that right. After this time they will become liable for illegal working and may be issued with a Civil Penalty Notice, a Warning Notice, or become subject to further investigation by the Home Office.

If an employee is unable to provide evidence of their right to work in the UK during the 28-day grace period, the employer should commence the dismissal process. Immediate dismissal should be considered in cases where an employee is unable to provide any evidence whatsoever of a continued right to work in the UK.

How to fairly dismiss an employee over visa issues

When dismissing an employee in connection with visa issues, employers should take care to follow a correct and compliant process. In the first instance, a meeting should be held with the employee to establish what steps have been taken to obtain and supply the necessary right to work documentation. Following this meeting, the employer should make use of the Employer Checking Service to establish whether an application is outstanding.

If there is no outstanding application, a further meeting should be scheduled to notify the employee of their dismissal. At this time, the employee should be offered the chance to explain their position and ought to have the right to appeal. This will enable the employer to correct the decision if it turns out to be wrong.

Dismissals under these circumstances are likely to be without notice, and employment contracts ought to have a clause stipulating that employees must demonstrate that they have the right to work in the UK. If this clause features in an employee’s contract of employment, they would be in fundamental breach of their contractual obligations by failing to provide the proper evidence of their right to work in the UK.

In cases where there is no proof of right to work clause in an employment contract, employers should act carefully and seek legal advice immediately. It may be that making a payment in lieu of notice could help you to avoid a wrongful dismissal claim – however there is no obligation to offer this and any proposed financial settlement should be carefully scrutinised with the benefit of advice from a qualified expert.

How We Can Help

Employers face a difficult balancing act when dealing with employees whose right to work in the UK has expired. On the one hand, they must prevent illegal working to avoid substantial fines and criminal sanctions, but they must also acting fairly towards their employee to avoid any potential unfair dismissal claims.

WH Solicitors’ expert immigration lawyers are highly experienced in dealing with employment issues that arise from visa problems. We’ll work closely with you to understand the issues in play, and help to avoid the double-edged sword of financial penalties that can arise either from employing workers illegally or dismissing employees unfairly.

For help dealing with employment issues relating to an individual’s immigration status, contact our team today by calling (+44) 01483 608 786 or by emailing contact@whsolicitors.co.uk.