The Right To Work In The UK – Okuoimose v City Facilities Management (UK) LtdThursday, November 17th, 2011
Under the Immigration, Asylum and Nationality Act 2006, the employer can incur large penalties for failing to check whether an employee, or potential employee, actually has the right to work in theUK. The above case, heard in the Employment Appeals Tribunal, will not ease the penalty and compliance issues that many organisations have to contend with already. The outcome of this case is actually very simple, and reproducing the entire case could complicate that outcome. Therefore, the case has been abbreviated for the sake of conveying this in the best way.
Mrs Okuoimose is a Nigerian lady, married to a Spanish national. Her passport was stamped to say that her right of residence expired on 08 July 2010. On this date, her employer suspended her without pay, reinstating her on 16 August 2010, dismissing her on 20 August. Mrs Okuoimose claimed an unlawful deduction from wages under the Employment Rights Act (ERA) 1996 for the period that she was not paid. The judge at the Employment Tribunal in February 2011 ruled that, as the employee had lost the right to work in the UK, the contract itself was unlawful and, therefore, a claim could not be made under ERA 1996. The employer reasonably believed that he could face penalties for employing someone without the right to work in the UK. Mrs Okuoimose appealed to the EAT.
In October 2011, the EAT simply ruled that Mrs Okuoimose acquired residence rights and the right to take up employment by virtue of the fact that she was married to a European Union citizen residing in a Member State – i.e., the fact that she was married to a Spanish man, working and living in the United Kingdom. Amongst other quotes, the EAT pointed to the Immigration (European Economic Area) Regulations 2006;
‘A family member of a qualified person residing in the United Kingdom ….. is entitled to remain in the United Kingdom for so long as he remains the family member of the qualified person or EEA national’
and Directive 2004/38/EC;
‘Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self employment there’
In short, the employer was incorrect in his belief that her contract of employment was illegal and that he may incur penalties. Her contract was legal, she was entitled to work in the UK by virtue of her marriage and the passport stamp was irrelevant. Mrs Okuoimose succeeded in her claim for an unlawful deduction.
In our eyes, this case highlights two important things:
- an employer’s belief that they are taking the correct action does not prevent them for being open to later penalties, if this honest belief is tested in court at a later date, and
- employers need to be sure on their criteria for determining that a person has the right, and the continuing right, to work under a contract of employment.