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Immigration issues – unfair dismissal and migrant workers

Employers face significant penalties if they employ individuals who do not have a right to work in the UK. In Winful v Whitbread Group plc, the Employment Tribunal considered the case of a migrant worker whose visa expired after she had been employed for 5 years.

Whitbread employed Mrs Winful as a housekeeper from July 2005. Mrs Winful was Ghanaian, but had a right to work in the UK because she was married to Mr Dos Santos, a European Economic Area national.

In October 2010, Whitbread reminded Mrs Winful that her UK visa was due to expire and she needed to show the company that she had a continued right to work. It warned her that if she was unable to show the proper documentation, her employment could not continue. Mrs Winful applied to the UK Border Agency for her visa to be renewed.

Mrs Winful’s visa expired on 13 November, and Whitbread had a meeting with her. Whitbread learned that the UKBA had returned Mrs Winful’s application (she was having difficulty showing that she was still living with Mr Dos Santos).

Mrs Winful made a fresh application on 1 December. Whitbread dismissed her on 9 December 2010, on grounds that she was unable to demonstrate her right to work in the UK.

The tribunal rejected Mrs Winful’s unfair dismissal claim. It noted that between 13 November and 1 December, Mrs Winful’s visa had expired and she did not have a pending application for renewal. Whitbread reasonably believed that it would be acting illegally if it continued to employ her, and the dismissal was therefore fair for ‘some other substantial reason’.

This case is an example of how immigration legislation work in practice. The tribunal cited the case of Klusova v London Borough of Hounslow, where the Court of Appeal held that an employee is entitled to work in the UK if her visa has expired but she has a pending application that was made before its expiry. As Mrs Winslow’s original application was returned, she did not meet this test.

More information

For information on immigration and migrant labour issues in light of the Brexit vote, see our article: Brexit: FAQs on Immigration and Migrant Labour.

Users of Workbox, the employment team’s online HR site, can also access continually updated information on our dedicated pages:

 

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