In person For the v Respondent — 2020

The claimant, a black man from Nigeria who had worked for the respondent since 1 May 2007, was caught by a 2017 right-to-work audit carried out during merger due diligence. The tribunal found that Ms Kent, not Ms Burl, completed the Employer Checking Service form incorrectly by answering that the claimant did not already work for the respondent. The resulting Positive Verification Notice confirmed a right to work subject to restrictions linked to his earlier Tier 2 visas, and after legal advice the respondent concluded that his Night Support Manager role did not fall within the permitted supplementary or secondary work.

The claimant was suspended after an investigation meeting and the disciplinary hearing was postponed several times because he said he was unwell and produced fit notes. The respondent ultimately proceeded with the hearing in his absence on 15 December 2017. Ms Gray decided to dismiss him because he had not produced documentation showing that he was legally able to work in the UK and because continuing to employ him exposed the respondent to civil or criminal sanctions. On appeal, Ms Ademoye considered section 3C of the Immigration Act 1971 and upheld dismissal, finding that the claimant's right to work remained limited by the conditions attached to his previous Tier 2 (General) visa and that the respondent was not required to wait for the immigration appeal outcome.

The tribunal dismissed the unfair dismissal claim. Applying section 98 ERA 1996 and the range of reasonable responses test, it held that the respondent's belief that the claimant could not lawfully perform the role was reasonable, that the investigation and appeal were adequate overall, and that dismissal was open to a reasonable employer. It also dismissed the direct race discrimination claim, holding that there were no facts from which discrimination could properly be inferred and that the respondent's treatment of the claimant was based on right-to-work concerns rather than race. On the money issues, the tribunal held that the effective date of termination was 22 December 2017 and dismissed the composite claim for unpaid notice pay, arrears of pay and holiday pay, finding that the claimant was eventually paid all sums due on that basis.