Reasons for Unfair Dismissal and Immigration Status
In Kurumuth v NHS Trust North Middlesex University Hospital, the Employment Appeal Tribunal (EAT) decided that a Tribunal does not have to second guess an employer's decision about an employee's immigration status.
Mrs Kurumuth came to the UK in 1992 on a work permit. In 1997 her application for an extension was refused. She appealed. In 2001 she joined the Hospital as a bank worker and became permanently employed in 2003. At that time she produced a letter from the Home Office, confirming that she was permitted to work pending the outcome of her appeal.
Following the introduction of the points based immigration system in 2008, the Hospital became concerned about Mrs Kurumuth’s immigration status and took this up with both her and the UK Border Agency. On 22 December 2008, the UK Border Agency wrote to the Hospital saying “â€¦I am not therefore able to give you a precise date when Ms Kurumuth’s application will be addressed but we will look to resolve the matter as soon as circumstances permit..”.
Mrs Kurumuth was dismissed because the Hospital believed that she did not have the right to work in this country. She conceded this belief was genuine. The Employment Tribunal found her dismissal to have been unfair but for procedural reasons. On appeal, Mrs Kurumuth argued that the Tribunal should have decided her immigration status. If it had done so, the only conclusion would be that she was permitted to work, so her dismissal must have been substantively unfair. This would have given her an argument for reinstatement.
The EAT agreed that Mrs Kurumuth appeared to have the right to work in this country but said this is not a matter for Employment Tribunals; it is a decision for the Immigration and Asylum Tribunal. The Hospital had established a potentially fair reason for her dismissal (SOSR).
Looking past the obvious and, sadly, all too common failings of the Immigration Directorate, this decision is very narrow. It does not give employers carte blanche to err on the side of caution when dealing with potentially illegal workers. While it must be correct for the EAT to warn Tribunals against making immigration decisions, the rationale for the Hospital’s belief in Mrs Kurumuth’s status was flawed. It was lucky to get away with it and only did so because the focus of the argument was on the role of the Tribunal, not the substantive merits of the Hospital’s decision.