Employment Tribunal Case Review: Why Are Pre Employment Checks Critical?
Taking up references prior to new starters joining the team should be common practice, but what about other checks? ‘Right to Work’ checking is a legal requirement with criminal penalties if you fail to comply. Yet this is an example of how critical these pre-employment checks are:
A teaching assistant (TA) who was dismissed after being branded an illegal immigrant by her employer was recently awarded £20,829 in compensation after winning her claims of unfair dismissal and direct race discrimination against the Borough of Lewisham and Adamsrill Primary School. It’s a case which highlights the importance of pre employment checks, and most importantly, conducting them correctly.
Miss Sims, who worked at the school from 2015 until her dismissal in April 2018, was born in the US and came to the UK with her mother when she was a child. Upon entry she was given indefinite leave to remain (ILR).
Her mother died when she was 12 and she was placed in care. When she left care, she was given her old American passport which had the stamp in it, and was told that as long as she had her passport, her ILR was ‘fine’ and ‘could not be revoked.’
During part of a Disclosure and Barring Service (DBS) check at Adamsrill Primary School in March 2018, she encountered problems completing her details online as the new system did not allow for her particular circumstances. She attempted a second time with the school’s Business Manager and handed over her expired American passport, a copy of her tenancy agreement and her tax code but encountered the same problem.
A meeting with the headteacher followed, where she brought along evidence of the numerous other DBS checks she had been through during the 15 years she worked as a TA for the Borough of Bromley dating back to 2003, her old passport, her NI and NHS number, a council tax document and her mother’s death certificate. Despite the ILR stamp in the passport, she was told by the Headteacher that it was invalid. When Miss Sims challenged this, she was told that the documentation she provided did not meet the requirements of the UK Border Agency and that she would be suspended whilst the school investigated further. She was warned of dismissal.
At an HR meeting on 30 April, Miss Sims was told by the HR Officer that it was ‘a very good story’ and that her mum was ‘obviously an illegal immigrant which would make (her) an illegal immigrant’. She was asked how she had avoided detection for all this time without official identification documents and Miss Sims alleges she was told her passport was fake.
Miss Sims told the HR Officer that she had checked on the government website and her ILR stamp was valid, but the HR Officer insisted she was acting on the advice of the UK Border Agency. She was handed her dismissal letter.
On 15 February Miss Sims received her biometric residency permit following her application to the Windrush force.
Judge Sage said, “Had the Borough of Lewisham or Adamsrill Primary School investigated the claimant’s right to live and work in the UK we expected to see evidence of this investigation in the bundle or in the statements. We saw none.”
Where did it all go wrong?
This is a salutary case for employers to make sure before the person starts work that they have carried out their pre-employment checks on new employees without discriminating on the basis of either their perceived nationality or their actual identity. Neither is acceptable and could result in costly Tribunal claims, as well as criminal penalties. The importance of pre employment checks is outlined in how this case played out.
Whilst the duty is on the employer to check whether a job applicant is allowed to work for them before employing them, employees should be supported throughout the process and not made to feel as if assumptions are being made about their immigration status. Appropriate checks do need to be carried out on relevant documents and if there are any issues, these need to be identified.