Episode 4, Mobile Workforces: Immigration issues and termination of employment

Ruth Buchanan:

Hello, and welcome to the fourth episode in our Mobile Workforce's miniseries. My name is Ruth Buchanan and I'm an employment law partner. And today I'm joined by Liz Parkin, a senior associate in our London office, specializing in employment and business immigration. Our miniseries will explore the ever changing immigration rules, underpin mobility issues, and provide insights into the latest issues impacting our clients. We will be covering the life cycle of the employment relationship from recruitment and onboarding issues, through to managing a mobile workforce. And what happens when the relationship comes to an end.

In this episode, our focus is on termination of a worker due to immigration issues. You're listening to Ashurst Legal Outlook. There are likely to be a number of reasons why termination of an employee might arise, but failure to provide adequate right to work evidence is one which carries with the additional complexity. We'll be discussing when it might be appropriate to dismiss, as well as offering some practical guidance on tackling these issues. Hi, Liz, we were talking about right to work checks and repeat checks in our last podcast. So, when might dismissal be something that needs to be considered by an employer when we're talking about right to work issues?

Liz Parkin:

There are a few scenarios that we've come across. And just to name a few, we've got the most obvious, which is where you've got an employee. They've got a time limited right to work. So for example, maybe they're on a use mobility visa. That visa comes to an end, and the individuals made no new applications. So, they've got no ongoing right. Another example is if the employer knows that the employee's right to work has expired. And although the employees made an application that new application was actually made after their current right to work expired, that can cause real issues.

The other one that we've talked about in our previous session is when you get that negative for your checking service check back from the online system. The other one might be if there's a change in circumstance. So, the employee's visa is no longer valid. So, maybe if they're here as the spouse of someone on a skilled worker and that main applicant's visa is terminated, then that in term will actually lead in most instances to the curtailment of the spouses dependent visa. And they'll need to make some new application. And another really common one actually is if an employer has employees who have 'TUPED' in to a business and they're carrying out some new right to work checks on those new employees, and there's some issues with regards to the documentation that's available at that time.

Ruth Buchanan:

So, how do an employer actually knew about these issues.

Liz Parkin:

So, employers should be tracking the right to work status of their staff. They should have this information on, and it should be in the forefront of everyone's mind when they're onboarding people, when there's a transaction, when new people come into the business. But most importantly, tracking individuals who have this time limited right to work and checking those records on a regular basis to see whether there are any individuals whose right is due to expire in the near future. And these regular reviews of the record keeping. So, it could be an Excel spreadsheet. This might be an HR system that does this for you, but these regular reviews should then trigger a dialogue, being opened up with the employee to basically just ask, what are your next step in order to ensure that there's going to be this ongoing right to work and that the employees really on top of this?

Ruth Buchanan:

So, how far ahead should that dialogue be started?

Liz Parkin:

We recommend that employers should be checking their records depending on the number of employees on a weekly basis. And then if you've got somebody's right to work clearly expiring, maybe within three months, then that's quite a good timeframe to start that discussion. It could be beforehand. It could be much longer. It depends how many people you got in the business. Or for example, if you think you're maybe going to have to sponsor somebody, you might want to start that conversation a bit earlier, but about three months is a good guideline. And that initial conversation, which could be in person or just a simple email needs to note that there's an expiry date coming up, and actually looking to flush out essentially what the employee's plans are. What have you considered? And it also acts as a reminder for the employees that they need to take some action in good time to maybe renew or switch their immigration status, because people are busy and sometimes they may not be on top of those expiry dates.

Ruth Buchanan:

And then in terms of best practice, how often would you then follow up with the employee to check how things were going?

Liz Parkin:

I think this is of course up to the business to decide and depending really on the level of trust you've got in that individual. But if this is an application, say that the employee is leading, I would, as a minimum, usually be looking to say, follow up maybe at the two month mark. And then fortnightly as that relevant deadline draws near, and you basically contact them more frequently the nearer that deadline is. If the employee's got the relevant updated visa, then you don't obviously need to carry on doing those follow up. But the practical issue here is that, there needs to be a clear documentary chain whereby the employer is essentially advising the employee. This is necessary in order to avoid any issues regarding your ongoing employment. You really need to make it very clear to the employee, this isn't just a formality. This is actually a necessity and this is something the business needs so that they actually take this seriously, and they're being proactive about this.

Ruth Buchanan:

And at what stage might this need to become a more formal conversation?

Liz Parkin:

I'd say if at maybe that two week mark, prior to the expiry date, if the employee hasn't taken any steps to make a new application, if they're saying, "Well, I'm not sure I'm still talking to my other half about this, or I haven't had a chance to look yet, for example." Then I would say, you are needing this to become a more formalized process. Now, this isn't a disciplinary at this stage. Obviously they've still got the right to work, but with any potentially serious matter we would actually recommend the employees essentially formally invited to a meeting. And that could be in personal or online. And that actually the situation is discussed, noting that ultimately in a worst case scenario, that if they don't get this sorted out, this could lead to a scenario where the business isn't able to employ them anymore, and it could be a dismissal.

So, this is really trying to drive forward the employee taking responsibility. If it's the business that's in control of this process and it's a sponsorship process, you've got much more control over the timing of things here.

Ruth Buchanan:

And if the employee says that they've made an application, but they're waiting for a decision, then what would the employer need to do in that circumstance?

Liz Parkin:

So, we touched on this point in our previous right to work podcast. So, where an employee has made an application before, and that before is very important, their current right to work expires, then the employer can use the online employer checking service to run a check, essentially to verify that they've got a pending application in with the home office. You've got to wait about 14 days from when the employee makes that new application for this to register on that home office system. But with the employee's permission, the employer can take that information, essentially run the ECS check. And if you get a positive result, then you've got a six month period that the employer continue to employ that person for pending a decision on their application. And for some applications, settlement, for example, it can take quite a while for a decision to be made. So, you can keep running those ECS checks every six months until some definitive result is returned.

Ruth Buchanan:

And can you always rely on the ECS checks? Would a negative result mean that the person is an illegal worker?

Liz Parkin:

So, those ECS checks aren't infallible. And it might be in certain instances that something hasn't registered the correct result. A negative result needs to be discussed with the employee to see whether this is something that needs to be rerun because you did it too soon, but we'd always recommend that you seek advice before talking to somebody about termination. Because if they're saying to you, "Look the online check isn't right," what you don't want to do is say to somebody, "Well, we're going to terminate you." When actually they've got an underlying right to work, and it's a system issue. It's been some case all around that, that essentially if you're provided with evidence that suggests that the check isn't right as with any process, you need to balance that evidence up.

But if the individual's got no good explanation and they just say, "Well, yeah, I haven't put anything in, actually." Then you are in a termination situation and you are needing to consider your fair process, risk of discrimination claims, and making sure that you are essentially carrying out some fair and clear process in talking to individuals. And this ties back to the point regarding opening an early dialogue with an employee, because if the business has been clear about the risks of not having an updated status, then having that difficult conversation naturally flows on and it shouldn't come as a surprise.

But if you're in a situation where there's no current evidence of right to work, no apparent pending application, then you are in a situation where you need to explain to the employee that this means that you actually can't continue to employ them on the basis that they've not been able to provide sufficient evidence of right to work. And then with any dismissal, you are talking about a fair process, ensuring the employees had a chance to discuss it, confirming decisions in writing, and importantly, giving them the right to appeal.

Ruth Buchanan:

If the employee is able to prove that they had the right to work all along, and it was just a misunderstanding. What should the employer do then?

Liz Parkin:

So, I've had this a few times. It's appeal where someone's been able to go back off, discuss with the home office and come back with clearer information. And it's likely in those situations, it's going to be appropriate to reinstate the employee. And in most cases it's usually appropriate to consider back pay as well because they may have actually had that continuing right to work, but that's a fact specific case. And again, in those more complicated situations you should be seeking really specific legal advice on those points.

Ruth Buchanan:

And you mentioned TUPE at the start, could rechecking employees after a GP transfer lead to a dismissal?

Liz Parkin:

So, this is one that we talked to clients quite a lot about. So, the right to work checks have changed over the years. And the type of acceptable evidence depends on when that employee was actually onboarded. So, when you've got employees who TUPE in to a new employer, the rules say that you can rely on the original right to work checks, but the employer's got the option if they want to in a 60 day grace period, after people are TUPEd in to actually carry out their own checks to verify right to work makes perfect sense.

But in doing so, are then checking your employees now against the right to work checks that are in place now. Whereas when they were onboarded, those may have actually been completely different right to work checks, different types of evidence may have been acceptable. So, I've seen this before where historically an expired passport with indefinitely to remain was actually acceptable. It didn't have to be a current passport. But the rules have since changed for new applicants requiring a current passport to be evidence with the indefinite leave to remain in it. So in these cases the business needs to consider, are you content that the original check using the rules that were applicable at the time that original check was done is actually acceptable.

And provided there are no obvious red flags, and the fact that an employee can't produce evidence that's at the current standards, it doesn't mean you should be terminating because you don't have to recheck people on a regular basis. These situations obviously require tailored advice, but more often than not, they were often ways of rectifying or minimizing risks around this. So in the example that I just discussed, the expired passport with indefinitely to remain in it. In that instance, the employee was actually entitled to make a free application, to have their indefinite leave status, essentially transferred to a new biometric document. And because they fell under some of the Windrush rules, that was actually a free process, so it didn't cost them anything.

And the employer was able to say, "Look, could you undertake this process in the next three months please?" And they got themselves comfortable with the fact that they were then essentially belt braces, making sure that employee status was actually correct. But with the TUPE scenario, it's always a bit of an odd one because you are looking at someone's documents now against historic rules.

Ruth Buchanan:

I think with this whole area, sometimes I think there is a misconception amongst employers that as soon as you get a negative check it's okay to dismiss. And that sometimes employers, because the penalties are so severe really just want to take steps with immediate effect. But other thing that you're saying, Liz, it's clear that it really isn't as simple as dismissing someone if they don't have a current right to work. And that employers really need to consider the other issues as with any employment relationship such as ensuring that the position's really clear before they pursue a termination, and ensuring that there is a proactive approach taken to renewing the right to work. So thanks very much again, Liz, for a really useful session.

Liz Parkin:

Great speaking. Thanks Ruth.

Ruth Buchanan:

Thank you for listening. If any listeners want to get in contact with Liz or myself, then our details are on the Ashurst website, ashurst.com. We have some more exciting podcasts on the way, including looking at the business visitor route, the new global mobility options, and some tricky sponsorship sheets. To ensure you don't miss any future episodes, do subscribe there on Apple Podcast, Spotify, or your favourite podcast platform.