Hello and welcome back to penultimate update of the year (gasp/cheers/sobs). Last week we looked at race discrimination and constructive dismissal. This week we are again looking at race discrimination but this time it is linked to right to work checks.
Olatinwo v QualityCourse Ltd T/A Transline Group
When checking whether an applicant or employee has the right to work in the UK, the Home Office gives the following guidance:
‘When a current residence case, permanent residence card, accession residence card or derivative residence card is inserted into the holder’s national passport, there is no requirement for the passport to be current. However, you should ensure that the passport belongs to that person and take particular care checking the passport photograph if the passport is a number of years old.’
Therefore, the question this week is:
Does an incorrect view that an applicant doesn’t have the right to work in the UK, and is dismissed, due to an expired passport amount to race discrimination?
Mr Olatinwo, the Claimant, had an interview with, and started work for, Quality
Course Ltd, the Respondent. The Respondent supplied staff to Argos warehouses. The Claimant was a Nigerian national and had a permanent residence card stamped into an expired passport.
During his interview, the Claimant assured the Respondent he had the right to work in the UK. He brought in his expired passport and residence card, his current passport and a copy of the Home Office guidance.
The Claimant’s line manager at the Respondent had not had training on immigration legislation or right to work checks. Whilst checking the Claimant’s right to work documentation, the Respondent formed the incorrect belief that because the residence card was stamped in an expired passport, the Claimant did not have the right to work in the UK.
The Respondent did a check with the Home Office but failed to fill in the form correctly to state they had seen a valid residence card. The Home Office did not mention to the Respondent that the Claimant had a valid residence card. The Respondent dismissed the Claimant after 10 days employment because they believed he did not have the right to work in the UK.
The Claimant began ET proceedings. He pleaded that he had been discriminated against on the grounds of his race. He alleged that because he was a Nigerian national, the Respondent had formed the incorrect and prejudiced opinion that he was less likely to have the right to live and work in the UK. This view meant that the Respondent did not follow the simple Home Office guidance and instead performed the erroneous further check that resulted in dismissal.
The ET held that there was no discrimination as the decision to perform the further check was based on a false belief that the expired passport meant the residence card was invalid. The Claimant appealed and the EAT allowed the appeal. It held that the ET did not give enough attention to why the Respondent had rejected the documents and the burden of proof was on the Respondent to show it was not based on/tainted by race. The EAT sent the claim back to the Tribunal to re-consider.
Takeaway point:
In this case, possibly. By failing to follow the simple Home Office guidance about right to work in the UK, the Respondent erroneously dismissed the Claimant. The decision may have been tainted by the Claimant’s race and that was enough in this instance. The Tribunal will have to re-consider whether race did taint the decision.
The key here is training staff involved in recruitment to know the rules on right to work checks. In this case a lack of training has cost this employer quite dearly.
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