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".