In Kurumuth v NHS Trust North Middlesex University Hospital the EAT has held that dismissal of an employee was reasonable in circumstances where the UK Border Agency had failed to clearly indicate her immigration status and that she had the right to work in the United Kingdom.

Mrs Kurumuth is Mauritian. She came to the UK in 1992 with a work permit. In 1997 she was refused further leave to remain in the UK but appealed. Upon taking up permanent employment in 2003, she produced a letter from the Home Office stating her entitlement to continue to work in the UK until her appeal was determined, but it never has been.  Following the introduction of a new points-based system, a check was made of Mrs Kurumuth’s status, but the latest official UK Border Agency statement gave no indication of when the matter would be resolved, so with no evidence that Mrs Kurumuth had any right to work, she was dismissed following a suspension.

The tribunal found the dismissal procedurally unfair, but that the substantive decision to dismiss was within the range of reasonable responses. Applying the Polkey principle, the tribunal reduced the compensatory award to nil as dismissal would have occurred in any event. Mrs Kurumuth appealed, arguing that the dismissal was both procedurally and substantively unfair and the tribunal had failed to establish her immigration status.

The EAT rejected the appeal. It was not for the tribunal decide her immigration status – that was a specialist decision for the immigrating judiciary. Furthermore, the Trust had shown a fair reason for dismissal, as it genuinely believed Mrs Kurumuth was not entitled to work in the UK, because the Border Agency had failed to clearly indicate her immigration status. The tribunal had also been entitled to reduce compensation to zero as dismissal would have occurred in any event, had a reasonable procedure been followed.