In this legal update, we look at the law surrounding dismissal on the grounds of illegality. That is, where it becomes illegal to continue employing the employee in the job he or she is doing.
Employees who meet certain qualifying conditions have the right not to be unfairly dismissed from their jobs by their employer. An employee who is unfairly dismissed can bring a claim against their former employer for financial compensation.
Potentially fair reasons for dismissal
The law sets out the potentially fair reasons for which employers could dismiss an employee. One of the potentially fair reasons for dismissal is that allowing the employee to continue to work in their job would be illegal. Examples include where a driver loses his driving licence or where an employee subject to immigration controls losses the right to work in the UK.
Right to work in the UK
In relation to immigration status, there is a positive duty on employers to ensure workers have the right to work in the UK. Employers are subject to civil and criminal liabilities for employing individuals who do not have the right to work in the UK.
What does an employer need to do?
Where an employer believe that it would be illegal to continue employing someone, before reaching its decision on what to do the employer will need to act reasonably. If there is a claim for unfair dismissal in an employment tribunal, the tribunal will look to assess whether the dismissal was fair in all the circumstances. This means that, in situations where an employer believes it would be illegal for the employee to continue in the job, the employer should take steps to ascertain that it would in fact be illegal to continue employing the employee. The burden of proof in an unfair dismissal complaint is on the employer to show that it had a fair reason to dismiss the employee.
In terms of reasonableness, case law has established that employers should consider whether the employee could be redeployed to avoid the dismissal. For example, in the case of a driver who has been banned from driving for a period of time, an employment tribunal would expect the employer to have considered if the employee could be placed in another job until the ban period expired. Failure to consider this option may render the dismissal unfair.
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