05-12-2011

Employers should be sure of non-entitlement to work before suspending migrant workers

A foreign employee has won a claim for unlawful deduction of pay against an employer who suspended her because he honestly, but mistakenly, believed that she was no longer entitled to work in the UK.

The employer’s belief was an honest one, because a stamp in the employee’s passport confirming her entitlement had expired. It feared it would be fined so it suspended her from pay until the UK Border Agency had issued a confirmatory letter. In fact, she continued to be entitled to work in the UK despite expiry of the stamp. She claimed for unlawful deductions of pay during the suspension period.

The Employment Appeal Tribunal (EAT) ruled that the claimant had been entitled to work in the UK throughout the whole period. She was therefore entitled to pay for that period. It was irrelevant that the employer honestly or reasonably believed she was not.

Recommendation

Employers should be absolutely sure that a migrant worker is not entitled to work in the UK before suspending their pay, or taking any other action against them. If in doubt, take specialist legal advice.