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The Employment Appeal Tribunal (EAT) held in Badara v. Pulse Healthcare Limited that an employer could not rely on a negative verification notice in relation to the employee’s right to work in order to withhold work and pay from an employee.
Mr Badera was a Nigerian national and was a family member of an EEA national and therefore had a right to work in the UK pursuant to the Free Movement European Directive 2004/38/EC and the related provisions of the Immigration (European Economic Area) Regulations 2006.
Mr Badera was employed by Pulse Heathcare as a healthcare support worker. His UK residence card confirmed his status but expired on 20 January 2015.
The Home Office ECS (Employer Checking Services) checks during this period were negative. Although the ECS results should have come back positive they had incorrectly come back as negative. As a result, Pulse Healthcare refused to provide Mr Badera with any work on the basis that he had not supplied evidence of his right to work in the UK.
Pulse Healthcare had mistakenly believed that it required documentary evidence of his right to work, however Mr Badera had an automatic right to work as a family member of an EEA national.
The EAT found that the Employment Tribunal had erred in allowing the employer to rely on clause 8.1 in its employment contract which provided that the employee had to produce evidence of his eligibility to work in the UK. It was also found that the Employment Tribunal had failed to take into account the Home Office guidance which stated that an ECS check alone was not enough to determine eligibility to work in the UK.
Mr Badera’s claims of unlawful deduction from wages and indirect discrimination have been remitted to the Employment Tribunal for reconsideration.
This case serves as a useful reminder of the importance of ensuring the correct right to work checks have been carried out when assessing whether to refuse work or terminating an employee’s employment.
To discuss this article, or further employment advice, please contact the team on 0113 849 4000 or email firstname.lastname@example.org