In Badara v Pulse Healthcare Limited UKEAT/0210/18 the Employment Appeal Tribunal (“EAT”) considered whether an employer acted reasonably when requiring an employee, a non-EEA national married to an EEA national, to produce documentation proving his right to work in the UK.
The Claimant was a Nigerian national who was the family member of an EEA national residing in the UK. He had a UK residence card confirming his status under the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”) which expired on 20 January 2015.
The Claimant had worked for the Respondent as a healthcare support worker since 15 February 2013. Following expiry of his residence card, the Respondent refused to provide him work and on 17 November 2015 the Respondent terminated his contract on the basis that he had not supplied evidence of his right to work in the UK.
The Respondent had conducted Home Office ECS (Employer Checking Services) checks during this period, all of which returned negative results.
In refusing to provide work, the Respondent relied on:
- The penalty provisions against employers of those without eligibility to work (Immigration, Asylum and Nationality Act 2006 (“2006 Act”) and Immigration (Restrictions on Employment) Order 2007 (“2007 Order”).
- Clause 8.1 in a contract between the parties stipulating: “The Contractor is required to produce evidence of its Employee’s eligibility to work within the United Kingdom forthwith upon Our request. In the event that the circumstances of such Employee changes in any manner that might affect their continued eligibility to work in their country, the Contractor shall immediately inform us of the details.”
The Claimant’s claim to the Employment Tribunal
The Claimant filed two ET1s, asserting himself as an employee and complaining of unlawful deduction of wages and direct and indirect discrimination on the grounds of race and/or nationality.
The ET held that whilst the Claimant did have the right to work under the EEA Regulations, it had been reasonable for the Respondent to request proof of eligibility in the form of ECS checks in light of the penalty provisions of section 15 the 2006 Act and clause 8.1 of the contract.
The Claimant‘s appeal to the EAT advanced two main arguments:
- The Employment Tribunal (“ET”) had been wrong to distinguish the EAT decision in Okuoimose v City Facilities Management Ltd (UKEAT/0192/11/DA), which made clear that the provision of the 2006 Act and 2007 Order were irrelevant in circumstances where the employee had a right to work pursuant to the EEA Regulations
- The ET had failed to take into account Home Office guidance.
Rights of EEA national family members to reside and work in the UK
The effect of Articles 23 and 25 of The Free Movement European Directive 2004/38/EC is that a family member of an EEA national is entitled to reside and work in the UK, and they are not required by law to hold a residence card or other document in order to exercise those rights.
The EEA regulations seek to transpose the Directive. Under Regulation 6, an EEA national is a qualified person if they are a job seeker, worker, self-employed person, self-sufficient person or a student.
Regulations 13 and 14 provide for an initial right of residency and then an extended right of residency, as long as the EEA national remains a “qualified person”.
Under Regulation 15, the EEA national and their family members will automatically acquire a right of permanent residence once they have been a qualified person for a continuous 5 year period.
Decision of the EAT
The EAT held that the appeal in respect of the claim of direct discrimination would be dismissed, but claims for unlawful deductions of wages and indirect discrimination would be allowed, and the matter would be remitted to the same ET for reconsideration.
In respect of the unlawful deductions claim, the EAT concluded that where an employee did, in fact, have a right to work under the EEA Regulations, on a proper construction of clause 8.1 it would be sufficient for the employee to produce evidence that he was a family member of an EEA national and held a valid passport. An employer would not be entitled to request documentary evidence relevant only to those who required leave to enter or remain in the UK within the meaning of S.15 of the 2006 Act.
The EAT recognised the difficult position in which this places employers at paragraph 57 of its determination, but emphasised that the Claimant had a right to work and, as the Home Office guidance made clear, was under no obligation to register with or obtain documents from the Home Office.
It is also important to note that employers should not solely rely on ECS requests to determine that an employee does not have the right to work in the UK and therefore their employment is illegal, since the outcome of the check may not accurately reflect the employees’ rights.
By Hesham Shoeb
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