Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

In the case of Mr M Sanha v Facilicom Cleaning Services Ltd 3200292/2018, the Claimant was employed as a full-time cleaner by the Respondent. Once his residence permit expired, he re-applied for an extension. He was dismissed when this did not come through. His employer wrongly presumed that he was subject to immigration control and that it would suffer a penalty if it continued to employ him. The Claimant was successful in winning all his claims for compensation although these were subject to a deduction due to his failure to mitigate his losses.

The facts in Mr M Sanha v Facilicom Cleaning Services Ltd

The Clamant was employed by the Respondent from 3 August 2015. At the start of his employment, he produced his passport containing his residency permit which was valid from 16 August 2012 to 16 August 2017. The permit showed (and the Respondent therefore was on notice of that fact) that the Claimant was a family member of an EEA national and that he was permitted to work. As a family member of an EEA national, the Claimant was not subject to immigration control (s25 Immigration Asylum and Nationality Act 2006) as he did not need leave to remain in the UK. This meant that an employer of the Claimant could not be subject to a penalty provided that he remained resident with his (in this case), Portuguese wife.

On 24 July 2017, the Claimant made a written application to the Home Office to renew his residency permit and gave proof of posting of it to the Respondent (though not a copy of the actual application).

Due to a failure of the application to be processed in time, the Claimant was suspended without pay by the Respondent from 18 August 2017.  On 5 September 2017, the Respondent checked the Employer Checking Service (ECS) which confirmed that no certificate of application had been issued to the Claimant. The Respondent wrote to the Claimant on 13 September 2017, setting up a meeting and warning him that his employment was at risk unless he could find satisfactory proof of his right to work in the UK. At the meeting on 25 September 2017, the Claimant was not forthcoming about what had emerged since he applied in July. He showed again the Respondent proof of posting of a letter to the Home Office dated 22 September 2017 but did not explain that he had had to send in further documents to process his application. The Respondent did another ECS check on 29 September 2017 but still no certificate had been issued. The Respondent sent a letter of dismissal to the Claimant.

The Claimant was given a right of appeal but this was never received by the Respondent, who then gave his job to another person. On 26 October 2017, when the Claimant finally met with the Respondent and his residency permit had been approved, his job no longer existed. He was however offered 10 other vacancies for which he could apply. The Claimant refused to do so.

The decision of the Employment Tribunal

The ET found that the Respondent did not act reasonably either in not making a further enquiry of the Home Office before dismissing the Claimant or asking the Claimant further questions about what he understood the delay to be caused by. The Respondent relied solely on the two ECS checks and did not consider the Claimant’s status as an EEA family member or consider that the problem lay with a delay at the Home Office.

The ET considered the Employment Rights Act 1996 and section 98(2)(d) in which contravention of an enactment is a fair reason for dismissal. The ET pointed out that to rely on this as a fair reason, the employment must in fact have been in breach of an enactment. As the Claimant was not subject to s.25 of the Immigration Asylum and Nationality Act 2002, there could be no penalty imposed on the Respondent despite the expiry of the residency permit in the Claimant’s passport.

The Claimant was awarded lost wages over the period of suspension as well as compensation (basic and compensatory award) for the period up until 26 October 2017 and lost holiday pay. However, his failure not to mitigate his losses following the job opportunities provided by the Respondent on 26 October meeting, meant that his compensatory award was reduced by 25%.

Our solicitors’ view on Mr M Sanha v Facilicom Cleaning Services Ltd

Caroline Lewis, specialist employment lawyer at Redmans Solicitors, commented on the case: “While there are potential criminal and civil implications for employers employing migrants who have no right to work in the UK, in this case, the employer knew of the employee’s circumstances including that he was married to an EEA citizen and therefore not subject to immigration control. This meant that the employer could not justify his reason to dismiss being because it was concerned it would be breaching immigration law. An employer must clearly know and understand the immigration status of all of its workers”.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Contact us

    Please feel free to discuss your own position and concerns. Contact your nearest office on:

    T: 020 3397 3603
    E: enquiries@redmans.co.uk
    W: www.redmans.co.uk

    Testimonials

    4.78 Average

    216 Reviews

    Valentina D

    Great service from Mel, she was very good at explaining every part of the settlement agreement and very efficient dealing with the HR team. Very professional team, I would definitely use them again in future if the opportunity came up.

    Posted 2 hours ago

    Olaf S

    I was very happy with the service that I have received. Thank You Regards

    Posted 3 hours ago

    Rebecca A

    I had a wonderful solicitor called Caroline who was so helpful and gave me all the information I need and explained everything in detail so I was crystal clear. Would highly recommend if you are in need of a solicitor!

    Posted 2 days ago

    Gareth J

    Very efficient, helpful and pragmatic support from Caroline. Happy to work with my requirements / suggestions but also made some very good points which helped to achieve a higher settlement amount. Would highly recommend Caroline and Chris.

    Posted 2 days ago

    Ellen S

    Excellent, professional, timely. Friendly when I needed it most. Would recommend to anyone.

    Posted 3 days ago

    Ellen S

    Excellent, professional, timely. Friendly when I needed it most. Would recommend to anyone.

    Posted 3 days ago

    Cristina G

    Very professional and reliable. Timely answers, clear and to the point. Always looking for the best for their customers.

    Posted 4 days ago

    Rob T

    Very professional and on target - highly recommended.

    Posted 1 week ago

    Anonymous

    Very efficient service and knowledgeable solicitors.

    Posted 1 week ago

    Anonymous

    Excellent response time from first contact. Quick and easy completion of documents required. Fast response to any queries I made.

    Posted 1 week ago

    Anonymous

    Redmans Solicitors did a great job and were very professional at all times. Would definitely recommend.

    Posted 3 weeks ago

    Gary P

    All good advice, prompt and efficient

    Posted 2 months ago

    Anonymous

    Excellent advice and customer service.

    Posted 3 months ago

    Aneet G

    I would definitely recommend Redmans. Very impressed with service provided. They were extremely proactive in handling my case which made things easier for me. Provided sound advice and resolution. Special credit for this goes to Chris who dealt with my case with great determination and consideration.

    Posted 3 months ago

    Fern M

    Very efficient and friendly

    Posted 3 months ago

    Neville S

    A professional and friendly service, which I would highly recommend.

    Posted 3 months ago

    Daniel T

    Extremely helpful and made a bad situation much more manageable. Where other solicitors seemed disinterested in my situation Redmans immediately made me feel like it was a team effort to achieve a more favourable outcome

    Posted 3 months ago

    Paul T

    Excellent, quick and informative. Chris was a real star and gave me confidence during the uncertainty if a redundancy settlement.

    Posted 3 months ago

    Marina E

    Felt in very capable hands was listened to and given excellent advice. Would not hesitate to recomend and use again if needed.

    Posted 3 months ago

    Rosa B

    Fabulous service all round.

    Posted 3 months ago

    Anonymous

    Redmans were quick to respond to my enquiry and dealt with my case professionally and personably. I received sound advice and was put at ease by Chris Hadrill, Partner.

    Posted 3 months ago