Members: Kenneth Thomson James Burnett Mr Naseh Ahmed v Represented by: Ms L Campbell Solicitor McCurrach UK Ltd — 2018

The claimant brought a direct race discrimination claim alleging that the respondent failed to investigate or access the Home Office online checking service to verify his right to work and then dismissed him because of his race. The tribunal accepted that the respondent had undertaken a company-wide right-to-work audit and had identified both the claimant and one Ghanaian employee as needing renewed checks because prior verification had expired.

The tribunal found that the respondent had asked both employees to provide supporting documents. The Ghanaian employee produced his documents and remained in employment after a positive check was completed. The claimant could not provide his documents because they were with the Home Office, and the tribunal found that he did not provide a second solicitor's letter despite saying he would obtain one. The tribunal accepted the respondent's evidence that, on the Home Office guidance, it needed to see an original document or solicitor's letter before it could proceed with an online check, and that a Home Office reference number alone was not enough while the claimant remained employed.

Applying section 13 Equality Act 2010 and the comparison required by section 23, with reference to Shamoon v Chief Constable of the Royal Ulster Constabulary, the tribunal held that the material difference in treatment between the claimant and the Ghanaian employee was the claimant's failure to produce the supporting paperwork, not race. It rejected the suggestion that the respondent assumed his right to work had expired because he was Pakistani, and accepted the witnesses' evidence that no such assumption was made.

The tribunal further held that, even if dismissal amounted to less favourable treatment, the reason was the claimant's failure to provide the documents or a solicitor's letter needed to complete the check, not his nationality. It therefore dismissed the claim in full and recorded no award of compensation.