There has been a lot of news over the last few years about the increased obligations on employers who employ migrant workers. How do you balance the rights of a worker with the risk of penalties for illegal employment?
In Okuoimose -v- City Facilities Management (UK) Ltd, Mrs Okuoimose was from Nigeria. She was married to an EEA national (from Spain) and was therefore entitled to live and work in the UK. The stamp in her passport which confirmed this expired on 8 July 2010. From this date, she was suspended from work without pay and asked to provide evidence of her eligibility to work in the UK. Mrs Okuoimose’s application to renew her work permit was outstanding. On 12 August, City Facilities (the company) was advised by the UK Border Agency that they held no records which confirmed Mrs Okuoimose’s entitlement to live and work in the UK. The company was warned that they would be liable for a penalty if she was unable to produce appropriate evidence and they were later found to have employed an illegal migrant worker.
Mrs Okuoimose was dismissed on 20 August 2010 for illegality. On the same day, she produced a letter from the Border Agency dated 16 August 2010 confirming her entitlement to live and work in the UK. Her dismissal was rescinded and she was reinstated with effect from 24 August. She was paid her unpaid wages from 16 August, the date of the letter. Mrs Okuoimose claimed her unpaid wages for the period of her suspension - i.e. 8 July to 15 August.
The Employment Tribunal dismissed her claim on the grounds that her contract of employment was illegal during the period of her suspension. This was overturned by the Employment Appeal Tribunal who held that this was not the case; the contract had been legal at all times despite the lack of paperwork to prove it.
It is, of course, important to be mindful of immigration rules and to have appropriate procedures in place to ensure that the right to work for all employees is monitored. The company understandably acted cautiously in this case. However, its belief that the contract of employment was illegal did not outweigh Mrs Okouimose’s right to be paid when that belief was proven to be wrong at a later date.
