Mr Arthur Badoo v Guys & St Thomas NHS Foundation Trust Heard by CVP — 2021

The claimant was employed by the respondent from 13 May 2019. The tribunal found that the respondent, an NHS trust, had a legal obligation to prevent illegal working and had recorded the claimant as having a time-limited right to work based on an ECS check from April 2019, expiring on 14 October 2019. The claimant did not correct that record when he signed his contract, and instead relied on a certificate of application and his own view that his right to work arose from being the spouse of an EU citizen.

The tribunal found that the respondent wrote to the claimant in August 2019 about his right to work, that he replied that his right to work was not expiring but the statutory excuse was, and that he said he had made a new application to the Home Office. The respondent suspended him on 16 October 2019 because it had no positive ECS check and believed it could not continue to employ him without a statutory excuse. The tribunal accepted that this belief was genuine, even though it was mistaken, and found that the claimant later obtained a certificate of application, received a positive ECS result on 11 November 2019, and returned to work when the suspension was lifted.

On the unlawful deduction claim, the tribunal held that the respondent’s policy authorised the position it took and that there was no unpaid wages claim remaining, because the respondent had made good the pay not received during suspension. On indirect race discrimination, the tribunal accepted that the respondent applied a PCP requiring a positive ECS check to other non-EU or non-UK nationals, but held that the PCP pursued legitimate aims of complying with immigration legislation and protecting the respondent from penalties, and that it was proportionate. The tribunal rejected the further PCP allegation that the respondent insisted only on documents producing a statutory excuse regardless of underlying rights.

On direct discrimination, the tribunal held that the claimant was not suspended because he was married. It found that the only relevance of his marriage was that it was to an EU citizen, which was the basis on which he said he had the right to live and work in the UK, and it found no evidence that an unmarried person would have been treated differently. The tribunal also held that any claim based on EU Directive 2004/38/EC was outside the tribunal’s jurisdiction. On limitation, it found the claim was presented in time because ACAS early conciliation extended the limitation period from the suspension date.