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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44402
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have recently discovered an employees immigration documents

Resolved Question:

I have recently discovered an employee's immigration documents are out of date and on further investigation I have now received a letter from the home office stating she is not allowed to work in the UK. I received this letter on Wednesday just gone but I was at a funeral and unaware of it until the next day. However the employee must have become aware of this letter and took that day and part of the next day off to see her lawyer, again I was not aware of this as it was the day of the funeral and I was not informed. It appears she is putting in an application. I want to know if after the investigations and letter from home office I have now done can I sack her as an illegal immigrant?
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long has she worked there please?

Customer: Since august 2011
Customer: As I said -since August 2011
Customer: Are you not receiving my replies?
Customer: Hello. Are you able to respond to my question please?
Customer: Hello are you able to respond to my question please?
Ben Jones :

Hello, I was offline by the time you had responded. Have you spoken to her to get her side of the story on this?

Customer: Yes
Customer: She says her solicitor wasn't doint
Customer: g
Customer: she says her solicitor
Customer: she says her lawyer wasn't doing his job!
Ben Jones :

so do you know if this matter will be resolved or if she will actually continue not being eligible to work in this country?

Customer: dont know till the home office respond to the application however long that will take! The fact is she gave me another letter dated back end of 2012 when I first asked her provide evidence that it has been renewed a month ago but that effectively was out of date too. I think she was hoping it wouldn't be notiv
Customer: ced and buried her head in the sand
Ben Jones :

As she has over 2 years' service with you she is protected against unfair dismissal. This means you need to show there was a fair reason for dismissing her and also follow a fair procedure.


A dismissal is potentially fair if the employee "could not continue to work in the position which he held" without either the employer or the employee contravening "a duty or restriction imposed by or under an enactment".


This basically means that if by continuing to employ this person you or the employee will be breaching the law, you can fairly dismiss them.


However, if you wish to use this as a reason to dismiss you must establish that the continued employment would, in fact, breach a statutory restriction at the time of dismissal. It is not sufficient for you to have a reasonable belief that such a restriction applied - you need to prove this is the actual case.


If you can prove that continuing to employ this person will be in breach of the law then you can dismiss them. You would still need to have a formal meeting with the employee and have their side of the story, allow them to be accompanied and then if you are satisfied that it would be illegal to employ her, you can dismiss.

Customer: But I have just received a letter from home office stating that she is not allowed to work in the uk so isn't that proof that we are both breaching the law
Ben Jones :

yes that would be as long as you are satisfied for yourself that what they are saying is correct and she is breaching the law - don't just rely on that letter, you need to conduct an investigation for yourself

Customer: I have spoken to her solicitor on Friday and she said that I shouk
Customer: ld not be working her so isn't that sufficient
Ben Jones :

you should not just rely on what others tell you, you need to ask her for her documents that would show she is entitled to work in the UK, if she cannot produce these, then together with the other evidence you have you can come to a conclusion she is not legally allowed to work here and proceed on that basis

Customer: I have been asking her for evidence for the past month that she is eligible to work in the uk and nothing has been produced to prove she can
Ben Jones :

ok then you can proceed with thinking to dismiss, but still need to hold a formal meeting about this

Customer: if I allow her to come to work on Monday then I am continueinf
Customer: continueing to illegally employ her
Customer: to have a formal meeting
Ben Jones :

You cannot just dismiss her like that, you still need to follow a fair procedure, you can suspend her on full pay for the time being then arrange the meeting with her and proceed with dismissal, this can all be resolved within a couple of days

Customer: ok thank you I will give her a letter on Monday to attend a meeting on Tuesday Can you please tell me how I can save these conversations for me to look back on? Will it be in an email to me ?
Ben Jones :

You have a couple of options:
a) If you see a 'share' button and hover over it you can see the option to print.
b) You could copy and paste this conversation into a Word document or equivalent. You can then save and/or print it and refer to it in the future as necessary.

Ben Jones :

It will also be saved on here so when you come back you can access it

Customer: thank you
Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and all the best

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44402
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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