Salomey Tretu v Ocado Central Services Limited — 2024

The Claimant was employed as a personal shopper and had limited leave to remain which was due to expire on 30 September 2021. She applied for a fee waiver before that expiry date, which the parties agreed extended her leave under section 3C of the Immigration Act 1971 while the fee waiver was pending. The Respondent obtained a Positive Verification Notice from the Employer Check Service in October 2021, valid until 28 April 2022.

The fee waiver was granted on 28 March 2022. The tribunal found that the Respondent believed the Claimant had not made her later application for leave to remain within the 10 working day period referred to in Home Office guidance and the Immigration Rules. The tribunal did not find as fact that the Claimant was working illegally at the time of dismissal, because her application had not been rejected or queried by the Home Office and was later granted. It found instead that the reason for dismissal was some other substantial reason, namely the Respondent's belief that the Claimant was not entitled to work in the UK and that continuing to employ her would be unlawful.

The tribunal found that this belief was genuinely held and based on sound evidence, including the Claimant's contractual obligation to keep the Respondent informed, the timing of the fee waiver decision and later application, Home Office guidance, and legal advice obtained by the Respondent. It found that dismissal was within the band of reasonable responses given the potential statutory penalties for employing a person without the right to work.

The tribunal rejected the Claimant's procedural unfairness arguments. It found that the use of the same person as investigating and dismissing officer did not make the process unfair in this non-disciplinary context, that the Respondent was not obliged to carry out a further Employer Check Service check, that fresh consent was required for such a check, and that the Claimant was not procedurally disadvantaged by difficulties accessing the password-protected dismissal letter. The unfair dismissal claim was therefore dismissed.