EAT UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
UNFAIR DISMISSAL – Reasonableness of dismissal
PRACTICE AND PROCEDURE – Withdrawal
The Employment Judge erred in holding that the employer was correct to consider that it was obliged by section 15 of the Immigration, Asylum and Nationality Act 2006 to hold that it was unlawful to employ someone who, although he had the right to work and reside in the UK, did not provide the employer with documents other than a passport to prove that right. Section 15 did not apply to the Claimant as he was not subject to immigration control within the meaning of section 25. In any event, the reference in section 15(3) to seeking documents from an employee provides the employer excusal from a penalty. It does not impose an obligation on the employer to obtain these documents.
The decision that the employer had established that the dismissal of the Claimant for failing to provide such documentation fell within Employment Rights Act 1996 section 98(2)(d) was set aside. Bouchaala v Trusthouse Forte Hotels Ltd [1980] ICR 721 applied. The Employment Tribunal did not err in holding that dismissal because of a genuine but mistaken belief that employment of the Claimant was illegal fell with Employment Rights Act section 98(1)(b). Hounslow London Borough Council v Klusova [2008] ICR 396 applied. The decision that the dismissal was fair was set aside. The Employment Judge erred in dismissing the claim for deduction from wages. The dismissal of a claim following a withdrawal is a two-stage process. A party withdraws a claim under ET Rule 51. A judicial decision is required under Rule 52 to dismiss a withdrawn claim. Refusal to do so will be rare but where, as here, the only basis for withholding pay was obviously erroneous and irrational, an Employment Judge, properly directing themselves in law, would have held that applying Rule 52(b) it was not in the interests of justice to dismiss the withdrawn claim. Campbell v OCS Group UK Ltd UKEAT/0188/16 applied. The issues of fairness of the dismissal and the deduction from wages claim were remitted to a differently constituted Employment Tribunal.
Citations:
[2017] UKEAT 0250 – 16 – 0510
Links:
Jurisdiction:
England and Wales
Employment
Updated: 02 April 2022; Ref: scu.601898