Employee unfairly dismissed after employer wrongly presumed that he was unable to work in UK (Mr M Sanha v Facilicom Cleaning Services Ltd, ET)

In the case of Mr M Sanha v Facilicom Cleaning Services Ltd 3200292/2018, the Claimant was employed as a full-time cleaner by the Respondent. Once his residence permit expired, he re-applied for an extension. He was dismissed when this did not come through. His employer wrongly presumed that he was subject to immigration control and that it would suffer a penalty if it continued to employ him. The Claimant was successful in winning all his claims for compensation although these were subject to a deduction due to his failure to mitigate his losses.

The facts in Mr M Sanha v Facilicom Cleaning Services Ltd

The Clamant was employed by the Respondent from 3 August 2015. At the start of his employment, he produced his passport containing his residency permit which was valid from 16 August 2012 to 16 August 2017. The permit showed (and the Respondent therefore was on notice of that fact) that the Claimant was a family member of an EEA national and that he was permitted to work. As a family member of an EEA national, the Claimant was not subject to immigration control (s25 Immigration Asylum and Nationality Act 2006) as he did not need leave to remain in the UK. This meant that an employer of the Claimant could not be subject to a penalty provided that he remained resident with his (in this case), Portuguese wife.

On 24 July 2017, the Claimant made a written application to the Home Office to renew his residency permit and gave proof of posting of it to the Respondent (though not a copy of the actual application).

Due to a failure of the application to be processed in time, the Claimant was suspended without pay by the Respondent from 18 August 2017.  On 5 September 2017, the Respondent checked the Employer Checking Service (ECS) which confirmed that no certificate of application had been issued to the Claimant. The Respondent wrote to the Claimant on 13 September 2017, setting up a meeting and warning him that his employment was at risk unless he could find satisfactory proof of his right to work in the UK. At the meeting on 25 September 2017, the Claimant was not forthcoming about what had emerged since he applied in July. He showed again the Respondent proof of posting of a letter to the Home Office dated 22 September 2017 but did not explain that he had had to send in further documents to process his application. The Respondent did another ECS check on 29 September 2017 but still no certificate had been issued. The Respondent sent a letter of dismissal to the Claimant.

The Claimant was given a right of appeal but this was never received by the Respondent, who then gave his job to another person. On 26 October 2017, when the Claimant finally met with the Respondent and his residency permit had been approved, his job no longer existed. He was however offered 10 other vacancies for which he could apply. The Claimant refused to do so.

The decision of the Employment Tribunal

The ET found that the Respondent did not act reasonably either in not making a further enquiry of the Home Office before dismissing the Claimant or asking the Claimant further questions about what he understood the delay to be caused by. The Respondent relied solely on the two ECS checks and did not consider the Claimant’s status as an EEA family member or consider that the problem lay with a delay at the Home Office.

The ET considered the Employment Rights Act 1996 and section 98(2)(d) in which contravention of an enactment is a fair reason for dismissal. The ET pointed out that to rely on this as a fair reason, the employment must in fact have been in breach of an enactment. As the Claimant was not subject to s.25 of the Immigration Asylum and Nationality Act 2002, there could be no penalty imposed on the Respondent despite the expiry of the residency permit in the Claimant’s passport.

The Claimant was awarded lost wages over the period of suspension as well as compensation (basic and compensatory award) for the period up until 26 October 2017 and lost holiday pay. However, his failure not to mitigate his losses following the job opportunities provided by the Respondent on 26 October meeting, meant that his compensatory award was reduced by 25%.

Our solicitors’ view on Mr M Sanha v Facilicom Cleaning Services Ltd

Caroline Lewis, specialist employment lawyer at Redmans Solicitors, commented on the case: “While there are potential criminal and civil implications for employers employing migrants who have no right to work in the UK, in this case, the employer knew of the employee’s circumstances including that he was married to an EEA citizen and therefore not subject to immigration control. This meant that the employer could not justify his reason to dismiss being because it was concerned it would be breaching immigration law. An employer must clearly know and understand the immigration status of all of its workers”.