The next step

The Home Office guidance for employers on right to work checks

[Document]

To the tribunal’s ruling in the case mentioned in the article

[Weblink]

“You must be here illegally” comment costs £20,800

Background facts

Ms Sims (S) was born in the United States and holds American nationality. In the early 1980s, when she was around four years old, her mother brought her to England. On entry into the UK S was given indefinite leave to remain (ILR) and this was stamped into her American passport.

When S was twelve her mother died and she was placed into care. She was given her old American passport and told that as long as she had it, her ILR was “fine” and “couldn’t be revoked” .

DBS checks

In 2015 S began working for Adamsrill Primary School. On 5 March 2018 she was asked to undertake a DBS check. S gave her employer a number of documents, including her expired American passport with the ILR stamp.

The employer’s online DBS system would not accept the ILR in an expired passport. S felt this was an error as she’d previously had several successful DBS checks.

No HR advice

The school said it would take advice from HR but never did so. Nevertheless, at a later meeting with the school’s headteacher, S was told that HR’s advice was that the ILR stamp “had expired and was no longer valid” .

Despite S explaining that this was impossible, she was suspended. She then attended a meeting with HR where she set out her personal history to Allyson Hollidge (H). She also produced all of her previous DBS checks.

Unacceptable comment

H’s response was: ”That was a very good story but your mum was obviously an illegal immigrant, which would make you an illegal immigrant” . H then asked S how she had avoided detection for so long and alleged that her American passport was fake. S was dismissed and brought claims of unfair dismissal and race discrimination.

The tribunal unsurprisingly found in her favour stating that her employer had assumed that she was acting dishonestly and in the country illegally (by that point, S had received her biometric residence permit). S was awarded £20,800 for injury to her feelings (see The next step ).

Tip. As this case shows, there can be glitches in online systems and checking processes. Where you can’t verify right to work documents, don’t make assumptions or accusations about the individual or their right to work status. Instead, contact the Home Office Employer Checking Service to verify their status and obtain a positive verification notice. This procedure can be found on page 21 of its employers’ guidance on right to work checks (see The next step ).

Tip. Never dismiss an employee because you suspect them to be working illegally. You must either know this to be the case or hold a reasonable and genuine belief that it is, i.e. you’ve made extensive enquiries with the relevant authorities.

For the tribunal’s ruling in this case and the Home Office guidance for employers on right to work checks, visit http://tips-and-advice.co.uk/personnel-dz(PS 22.15.07).