The claimant in this case, Mr Badara (B) was a Nigerian national. He was the spouse of an EEA national residing in the UK. As such he had the right to work in the UK pursuant to the Free Movement European Directive 2004/38/AC and the related provisions of the Immigration (European Economic Area) Regulations 2006 (the "EEA Regulations"). He had been employed by the Pulse Healthcare Limited (the "Employer") as a healthcare support worker. Mr Badara had a UK Residence Card which confirmed his status but this was said to expire on 20 January 2015. On that basis, the Employer refused to provide him with work from that date on the basis that he had failed to provide evidence of his right to work in the UK.
Mr Badara complained of lost wages and direct and indirect discrimination on the grounds of race and/or nationality. The Employment Tribunal initially dismissed the claims. However, on appeal they were sent back to the Employment Tribunal.
The Employment Tribunal concluded that, although Mr Badara had the right to work under the EEA Regulations, in light of the significant penalties that applied to employers if they failed to discharge their obligations on checking employees' right to work and taking into account a clause in the employment contract which stated that Mr Badara had to provide proof of his right to work in the UK, the Employer had been reasonable in seeking that proof of eligibility in the form of positive checks from the Home Office. On that basis, the claims were dismissed.
Mr Badara appealed again to the EAT. There was no dispute that Mr Badara did in fact have the right to the work in the UK. It was recorded in the Employment Tribunal judgment that "this was the strict legal position, irrespective of any documentary evidence provided by the claimant.".
As you may be aware, there are significant fines imposed for failure to ensure that employees have the necessary permissions to work in the UK. However, Regulation s.4 and 4A of the Immigration (Restrictions on Employment) Order 2007 provides an excuse from paying a civil penalty (a fine) if the employee provides the employer with certain documents. The relevant documents are set out in lists by the Home Office and include:
- a permanent residence card issued by the Home Office to the family member of a national of a European Economic Area country or Switzerland;
- a "current residence card…issued by the Home Office to a non-European Economic Area National who is a family member of a national of a European Economic Area country or Switzerland or who as a derivative right of residence" or
- a "Certificate of Application issued by the Home Office".
Home Office guidance provided that "a person's application must be made before their leave expires for it to be deemed in time. If you received a negative verification notice in response to your request you will no longer have a statutory excuse and you should not continue to employ that person."
As a result of the Home Office advice, the Employer believed that it needed to have a clear Employer Checking Service (ECS) check in order to protect itself against any penalties or fine before providing work to Mr Badara.
Although, Mr Badara sought to renew his residence card, he did not do so until the afternoon of 20 January 2017, the date on which it expired. He brought along proof of posting the application to his employer but that was not a valid Certification of Application which was deemed to be suitable evidence under the Home Office guidance to avoid a fine.
The Employer had begun to carry out a series of the ECS checks as recommended by the Home Office all of which, between 21 January and 15 July 2015, were negative.
It was not clear why that was the case given that, about 20 January 2015, Mr Badara had made an application to extend his residence card. However, along with the negative checks were stark warnings about the consequences of continuing to engage an individual illegally.
However, 'additional information' was also issued by the Home Office which provided that individuals with the same immigration status of Mr Badara could demonstrate the existence of their right to work in the UK by other means. It appears that this was never explored with Mr Badara.
Indirect discrimination arises where a, on the face of it, neutral provision criterion or practice is applied but has a negative impact on a particular group. An employer can justify the application of the provision, criterion or practice if it can show that it was trying to achieve a legitimate aim (i.e. ensuring employees had the requisite right to work in the UK), and that they were acting proportionately. In this case, the EAT found that the employer should have taken into account the 'Additional Information' produced by the Home Office and the decision the EAT reached on another case involving the family member of an EEA national, Okuoimose v. City Facilities Management Ltd (UKEAT/0192/11/DA). In that case, the EAT found that O's right to work derived from her status as a family member of an EEA national rather that the documents she received from the Home Office. As a consequence the EAT decided here that, the case should be sent back to the ET to consider the claim of indirect discrimination matters again.
However, the EAT did not uphold the appeal in relation to the direct discrimination complaint. It found that the employers had a "natural concern to avoid the penalties identified in the 2006 Act and 2007 Order" which were "only magnified by the severe warnings contained in the negative ECS check". On that basis the direct discrimination complaint could not succeed.
This case demonstrates the need to have a clear understanding of your employees' right to work within the UK and demonstrates the difficulties that can arise when there are more complex immigration rights involved, such as rights under EU law and retained rights following changes in family circumstances. In this case efforts were made by the employer to satisfy themselves of the true immigration position. However, they did not consider the additional Home Office guidance on alternative documents that could be provided in these specific circumstances.
If in doubt about an employee's right to work in the UK, we encourage you to seek legal advice.
