It is illegal to employ an individual who is subject to immigration control and who does not have the appropriate immigration permission to work in the particular role. This can lead to civil and criminal penalties for employers and jeopardise your status as a registered sponsor. Employers should minimise the risk of illegal working by carrying out right to work checks on all employees in accordance with Home Office guidance.

However, having legally employed someone, there are numerous reasons why an employee might lose the right to work, most likely is that their original immigration permission expires. However, employers should also be aware that, in the event a TUPE transfer takes place, the transferee company will need to have a sponsor licence – or apply for one within 20 working days of the transfer.

But what do you do if an employee loses the right to work?

Your employment contract should contain a clause which requires employees to notify you of changes which might impact their right to work. You should also have systems in place to ensure that expiry of permission is flagged up at least three to six months prior to the expiry date.

It may be that termination of employment is your only option but there are things you should consider and steps that you should take before making a decision, to ensure the dismissal falls into one of the potentially fair reasons:

  • Is it unfair dismissal? notwithstanding that you have a potentially fair reason for dismissal, you still need to follow a fair procedure;
  • Can you rely on breach of statutory duty or restriction as a reason? although you can dismiss an employee for a ‘statutory ban’ reason without notice, you need to be certain that the employee doesn’t have the right to work – if it transpires that the employee did have permission to work in the UK, you could be liable for a damages claim for breach of contract for wrongful dismissal.
  • Some other substantial reason? this is another potentially fair reason for dismissal but you still need to be very clear on the facts.

Avoiding race discrimination

Take care not to make assumptions about an employee’s immigration status based on their race – you should carry out right to work checks on all employees. Dismissal just because the employer is concerned about the employee’s immigration status or because their permission to work is time limited, could be discriminatory, particularly where they do, in fact, have the right to remain. By carrying out a proper investigation the employer can establish the facts about the individual’s immigration status before making a decision, and demonstrate that it had a good reason to dismiss and that its motivation in taking action was to ensure compliance with the immigration rules, rather than the individual’s race.

Follow a fair process

When an employer discovers that an employee no longer has, or will soon no longer have, the right to work in the UK, it should avoid a knee-jerk reaction of terminating their employment with immediate effect. To minimise the risk of a successful unfair dismissal and/or race discrimination claim, the employer should follow a fair process before terminating. It should:

  • investigate concerns about the employee’s immigration status, by discussing it with them, reviewing relevant documents and using the Employer Checking Service;
  • explore if the right to work in the UK could be retained, for example via ancestry or dependant routes or sponsorship under the points-based immigration system; and
  • obtain evidence to justify a decision to terminate, such as confirmation from the employee that they do not have permission to work, or a negative verification notice from the Employer Checking Service. If the decision is made to terminate, the employer should write to the employee to confirm the dismissal and the date on which it will take effect. It should set out the reasons for the dismissal, including the steps that it has taken and the options that it has considered to avoid dismissal.

Notification duty

An employer that terminates, for any reason, the employment of an individual who it sponsors under the points-based system must notify the Home Office via the sponsor management system.