Kelly v University of Southampton

EAT: Judge Richardson, Mr M Clancy and Mr M Worthington: 11 December 2007

In January 2001 the claimant, an American citizen, was given permission to work in the United Kingdom as a university lecturer for five years, expiring on 31 December 2005, though the visa granting her leave to remain in the United Kingdom was for only four years, expiring on 8 January 2005. Her contract of employment with the respondent university stipulated that her employment after 8 January 2005 depended on her gaining leave to remain and work in the United Kingdom. The claimant failed to apply to renew her visa by 8 January 2005, and she was dismissed as from that date, the university taking the view that her contract terminated then by operation of law and any disciplinary procedure was inapplicable. An employment tribunal dismissed her complaint of unfair dismissal on the ground that, in continuing to employ the claimant the university would have been committing an offence contrary to section 8 of the Asylum and Immigration Act 1996; that that was a reason for dismissal falling within section 98(2)(d) of the Employment Rights Act 1996; and that the employer had acted fairly in dismissing the claimant within the meaning of section 98(4).

The claimant appealed.

The Employment Appeal Tribunal held:
It was not a criminal offence under section 8 of the Asylum and Immigration Act 1996 for an employer to employ someone who had no valid and subsisting leave to remain if that person satisfied a condition specified in article 3 of the Immigration (Restrictions on Employment) Order 2004, which by paragraph (3) included a person who was "permitted to work under the Immigration Rules". A person who held a subsisting work permit or other formal grant of permission to work satisfied that condition, and the "permission to work" did not cease if their leave to remain lapsed. Accordingly, as the claimant's permission to work was still subsisting even though her leave to remain had expired, the university would commit no offence under section 8 by continuing to employ her and the reason for her dismissal did not come within section 98(2)(d) of the Employment Rights Act 1996. While the university might establish a genuine belief in the existence of such a contravention amounting to some other substantial reason for the dismissal for the purposes of section 98(1)(b), the dismissal was automatically unfair under section 98A(1), as the university had failed to follow the appropriate statutory procedure.

The appeal was allowed.

Appearances: Natasha Joffe (Fieldhouse & Co, Redhill) for the claimant; Nicholas Chronias (Beachcroft) for the university.