Klusova v London Borough of Hounslow

The question on this appeal is whether the employment tribunal (ET) erred in law in deciding that the London Borough of Hounslow (the Council) unfairly dismissed Ms Elena Klusova on 10 August 2005.

The dispute revolves around the legal status of Ms Klusova, who is a Russian national, in connection with working in the United Kingdom at the date of her dismissal. Since September 1996 she has lived in the United Kingdom. In 1999 she was granted limited leave to remain for a period of 5 years until 14 May 2004. In November 2000 she entered the Council’s employment.

The ET accepted her case that she was legally resident and entitled to work here when she entered into the Council’s employment; that prior to the expiration in May 2004 of her original limited leave to remain she had made an in-time application to the immigration authorities at the Home Office; that her application had not been properly determined at the date of her dismissal; that she could lawfully continue in employment pending the proper determination of her application; that her summary dismissal by the Council was substantively unfair; and that it was also procedurally unfair, as the Council did not follow the prescribed dismissal procedures.

The Council’s primary case was that the summary dismissal was fair, as Ms Klusova had lost the right to work here after her original limited leave to remain had expired in May 2004. It would have been an offence under section 8 of the Asylum and Immigration Act 1996 for the Council to continue to employ her.

The Council’s alternative case was that, on the basis of information supplied by the immigration authorities in the Home Department, it genuinely believed that continuing to employ her would contravene “a duty or restriction imposed by or under an enactment” and this was “some other substantial reason” justifying her dismissal.

Although the facts are quite unusual, the case raises general points on the employment rights of immigrant employees and their employers.

The statutory provisions specifically governing employees subject to immigration control have featured in only a few of the reported cases.

An employer employing a person who is subject to immigration control is guilty of a criminal offence, if the employee has not been granted leave to enter or remain in the United Kingdom, or the employee’s leave to remain is not valid or subsisting, or is subject to a condition precluding him from taking up the employment: section 8 Asylum and Immigration Act 1996.

According to a Code of Practice issued by the Secretary of State under section 8A of the Asylum and Immigration Act 2006 it is lawful to employ people who were entitled to work and are awaiting the outcome of a request for an extension to that permission made before it ran out (paragraph 17). Employers are advised not to ask existing employees to demonstrate that they have permission to work (paragraph 19).

Section 98(2) of the Employment Rights Act 1996 (the ERA) provides that the fair reasons for dismissal include

“(d)

….. that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under an enactment.”

It was accepted by the Council (rightly, in my view) that a reasonable belief that Ms Klusova was not entitled to work in the United Kingdom would not satisfy the requirements of section 98(2)(d). Only an actual statutory bar on Ms Klusova working here would bring the case within this specific ground of dismissal.

Under section 98(1)(b) ERA the fair reasons for dismissal also include “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.” Mr Patel, who appeared for Ms Klusova on the appeal (but not in the tribunals below), accepted (rightly, in my view) that a genuine, though mistaken, belief by the Council that it was unlawful to employ her would be “some other substantial reason” for dismissal: see Bouchaala v. Trust House Forte Hotels Limited [1980] IRLR 382.

Section 98A ERA, which deals with procedural fairness in cases of dismissal, provides that

“(1)

An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-

(a)

one of the procedures set out in Part 1 Schedule 2 of the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b)

the procedure has not been completed, and

(c)

the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2)

Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

The three step statutory procedure for dismissal, which comprises a statement of grounds for action, a meeting and an appeal, does not apply to a dismissal of an employee under section 98(2)(d) ERA: Regulation 4(f) of the Employment Act 2002 (Dispute Resolution) Regulations 2004.

The Council did not follow the prescribed three step procedure, as it proceeded on the basis that its dismissal of Ms Klusova was within section 98(2)(d) ERA.

On 6 October 2006 the Employment Appeal Tribunal (EAT) allowed the Council’s appeal, set aside the order of the ET of 10 May 2005, dismissed Ms Klusova’s claim for unfair dismissal and gave directions relating to an application for a wasted costs order against the legal representative then appearing for Ms Klusova.

On 25 January 2007 Sir Henry Brooke granted permission to appeal to this court. He adjourned Ms Klusova’s application dated 26 February 2007 for permission to adduce fresh evidence on the appeal.

The Council opposed the application, which relates to a letter from the Home Office dated 19 October 2006. The letter from an official with the WPUK Managed Migration Directorate of the Home Office in Sheffield confirmed to Ms Klusova’s solicitors “her current status” and set out reasons why she is entitled to work in the United Kingdom pending determination of an application for indefinite leave to remain submitted by her in February 2005.

The Council commented that the circumstances of the Home Office letter were incomplete. No evidence was produced of Ms Klusova’s communications with the Home Office or of notes of telephone conversations leading to the production of this letter. Further, the letter did not satisfy the criteria for reception of fresh evidence on an appeal. It had not been shown that the information could not have been obtained by reasonable diligence for use in the ET or that it would have had real significance in the result. The letter was valueless, being merely the opinion of the writer. Even his opinion was of doubtful reliability in view of earlier mistakes made by the Home Office in connection with Ms Klusova’s status as an immigrant.

In my judgment, it is just for this court to grant permission to adduce the Home Office letter on this appeal. It contains up-to-date information from an authoritative source, which clarifies an earlier letter of the Home Office that was in evidence before the ET and was relied on in the decision. It sheds some light on the confusing aspects of the handling of Ms Klusova’s case by different emanations of the Home Office during 2004 and 2005. The contents of the letter do not necessitate an adjournment to obtain further evidence or a reference back to the ET to make further findings of fact or for a re-hearing. As will become apparent later in this judgment, the contents of the letter do not disturb any of the key findings of fact made by the ET.

Ms Klusova was born in Russia on 18 June 1966. She first entered the United Kingdom on a student visa on 6 September 1996. On 13 May 1999 she was granted leave to remain here until 14 May 2004 as the family member of an EEA national pursuant to a residence permit. The leave to remain entitled her “to take up and hold employment in the United Kingdom under the same conditions as United Kingdom workers.” She could lawfully work here by reason of her limited leave to remain rather than pursuant to a work permit.

On 13 November 2000 Ms Klusova began to work for the Council as a secretary. On 1 July 2002 she was appointed to the post of administrative officer (building control). The Council has not criticised her conduct or her competence as an employee.

As for her legal status to continue working in the United Kingdom after the expiration of the limited leave to remain, there was evidence before the ET that, so far as the Home Office was concerned, her original leave to remain was, on the basis of an in-time application made by Ms Klusova, deemed to have been extended until a correct refusal of the application was deemed to have been served. The Home Office’s understanding of the immigration position was set out in its letter of 23 November 2005, which was before the ET. It is confirmed and expanded in the Home Office letter of 19 October 2006, which is adduced in evidence on the appeal.

Although the 2005 Home Office letter post-dated the Council’s dismissal of Ms Klusova, it was credible evidence relevant to her legal status to work at the date of dismissal. This is so, even though documentary evidence of Ms Klusova’s Home Office applications has not been produced and the precise details are unclear.

On 11 March 2004 Ms Klusova made an in-time application to the Home Office. It was for “a leave to remain work permit.” The work permit was refused and, along with it, the leave to remain. Ms Klusova was entitled, however, to go on working, as her original leave to remain had not yet expired.

On 14 May 2004 another “leave to remain work permit application” was made by Ms Klusova. This was refused on the same grounds. The application was not, however, correctly determined by a refusal letter until towards the end of the next year, long after the date on which she had been summarily dismissed by the Council.

Ms Klusova’s current position, according to the Home Office, is that in February 2005 she amended her work permit application by seeking “Indefinite Leave to Remain” on the grounds of long residence in the United Kingdom. This is a valid application, which has been treated by the Home Office as having been made in time, but it has not yet been determined.

The Home Office is the relevant Government Department with which both Ms Klusova and the Council have had to deal on the issue of her legal status to work in the United Kingdom. More than one section of the Home Office has been involved in dealing with Ms Klusova’s immigration and employment issues. Some of the confusing features of this case flow from the involvement of three emanations of the immigration service in the handling of different aspects of Ms Klusova’s case.

On 1 March 2005 Mr Aidan Walsh of the Council’s Benefits Fraud Investigation team contacted the Home Office to ask whether Ms Klusova had a right to work. The Hounslow Office official (Mr Jim Robson) replied that she was an “overstayer” and had no right to work.

On 10 March 2005 the Council was informed that Ms Klusova had been arrested for immigration offences and detained. Several days later she was released from immigration detention subject to conditions. According to a letter dated 14 March 2005 (Form IS96 ENF NW Temporary Admission) issued by an Immigration Officer at the Hounslow Office she had to reside at her flat in Hounslow and report to the Hounslow Office weekly until 14 September 2005. An express condition stated that she “may not enter employment, paid or unpaid…”

On 22 March 2005 Mr Walsh was informed by the Hounslow Office that Ms Klusova had a right of appeal and that, pending the outcome, she was allowed to undertake employment. She went back to work for the Council.

On 15 July 2005, following further enquiries by Mr Walsh, the Hounslow Office wrote to the Council stating that Ms Klusova was currently prohibited from taking employment, “a fact that she should be well aware of.” Attached to the letter were two other documents, a letter from the Home Office to Ms Klusova’s Member of Parliament confirming that she was not entitled to take employment and the Form IS96 (see paragraph 30 above.)

On 27 July 2005 the Council e-mailed Ms Klusova asking her to provide documentary proof of her right to work within the United Kingdom. On 28 July her solicitors (Messrs Walkers) wrote to the Council asking for clarification of the request and referred to her application for Indefinite Leave to Remain in February 2005. The solicitors’ letter concluded

“If you have any grounds or reasons for believing that our client should not continue to work for the London Borough of Hounslow, can you please let us know what they are so that we can continue to investigate the matter further and, if necessary, make additional representations to the Home Office.”

On 1 August 2005 the Council replied requesting the original Home Office papers which confirmed her current employment status within 10 days of the receipt of the letter. The letter stated that failure to supply confirmation of continued eligibility to undertake employment might result in the termination of her contract with the Council.

The solicitors replied on 2 August 2005 saying that she had provided the Council with appropriate evidence of her entitlement to work in the United Kingdom when she commenced employment. In the Council’s view the solicitors’ letter provided no basis on which it could continue to employ Ms Klusova and no documentary evidence was provided.

On 10 August 2005 the Council summarily dismissed Ms Klusova. The Council’s letter stated that it had received confirmation from the Home Office that she was prohibited from taking employment. The Council did not follow the Statutory Dismissal and Disciplinary Procedures, as it considered that it was entitled to dismiss Ms Klusova under section 98(2)(d) ERA, to which the procedures do not apply.

On 11 August 2005 Ms Klusova’s solicitors gave notice of appeal against the Council’s decision to dismiss. The Council’s response was that there was no basis on which to hear an appeal, as no proof had been provided that, at the time of her dismissal, she was permitted to work in the United Kingdom.

Walkers replied sending a letter received by Ms Klusova from the Home Office dated 4 May 2005 stating

“Your client’s application is valid. … Provided an applicant has permission to be in the UK when an application is made, he or she is legally entitled to remain here on the same conditions previously granted until the application is decided.”

On 9 November 2005 Ms Klusova presented her complaint of unfair dismissal to the ET.

On 28 November 2005 Ms Klusova’s solicitors sent the Council another letter from the Sheffield Office. This was dated 23 November 2005 and stated

“…I confirm that your client’s original leave of 15 May 2004 [a mistaken reference to the 1999 leave to remain] is deemed to be extended until the correct refusal is deemed to have been served

As your client has a valid in time application with the Home Office for Indefinite Leave to Remain no action will be taken to remove her pending a decision on this case.

I regret Work Permits UK are not involved with making decisions on Indefinite Leave and all representations should be directed to the Home Office in Croydon.”

The ET held that the Council was not entitled to rely on section 98(2)(d) ERA, pointing out that it was for the Council to show that Ms Klusova’s continued employment did in fact contravene a statutory enactment and that it was not enough for the employer genuinely to believe this to be the case. In this instance there was no contravention of section 8 of the Asylum and Immigration Act 1996. The Code of Practice gave guidance that the Council might lawfully continue to employ Ms Klusova while she was waiting the outcome of her application to the Home Office.

The ET said

“7.1

Prior to the expiry of her visa on 15 May 2004, the Claimant made an “in time application” to the Home Office for indefinite leave to remain in the United Kingdom, in support of which Mr Cooper wrote to the Home Office Work Permit Section on 5 May 2004 confirming the Claimant’s employment with the Respondent. This in time application was confirmed by the Home Office in its letter to the Claimant’s solicitor dated 23 November 2005 which also confirmed that the Claimant’s original leave was deemed to be extended until the correct refusal was deemed to have been served and that no action should be taken to remove her pending a decision on her case.”

The tribunal also rejected the Council’s case of “some other substantial reason” within section 98(1)(b). It held that the dismissal was automatically unfair, saying-

“7.4

……the Tribunal found that the Respondent had neither notified the Claimant nor otherwise consulted with her about its concerns so as to put the Claimant’s solicitor on notice that he needed to seek the necessary clarification from the Home Office. Further, the Respondents had not considered the guidance in the Code of Practice. Under these circumstances the Tribunal found that the Respondent’s belief could not be said to be genuine.”

The dismissal was also procedurally unfair by reason of the Council’s failure to follow the applicable Statutory Dismissal and Disciplinary procedures and the absence of a statutory defence under Regulation 4(f) of the 2004 Regulations.

The EAT held that the ET’s decision that Ms Klusova had made a valid in time application to the Home Office was perverse, as there was no material available to the tribunal to uphold the assertion that such an application had been made before 15 May 2004 for permission to stay and/or to work in the United Kingdom.

The EAT accordingly concluded that, at the time of her dismissal, Ms Klusova could not continue to work in the position she held without contravention (either on her part or that of her employer) of a duty or restriction imposed under an enactment. The ET had erred in law in reaching the contrary conclusion.

The EAT also held that the Council had a genuine belief that she could not continue in her employment without contravention of an enactment and that this amounted to “some other substantial reason” for the dismissal.

By its order of 6 October 2006 the EAT accordingly allowed the Council’s appeal and substituted a finding that Ms Klusova was not unfairly dismissed. It noted in passing that the ET had erred in not addressing the defences of illegality and frustration of contract.

There is some common ground between the parties on both the facts and the law-

The critical issue for the ET was one of fact: did Ms Klusova make a valid application to the Home Office before her original limited leave to remain expired on 15 May 2004, which application was not properly decided by the Home Office before her dismissal? If these requirements are satisfied, her leave to remain was valid and subsisting under the Asylum and Immigration Act 1996 at the date of dismissal.

The Council cited the statutory powers of Immigration Officers, in particular the power of removal under section 10 of the Immigration and Asylum Act 1999 for remaining beyond the time limited by the leave to remain, the power to give directions in respect of the person concerned and the power of detention under section 16 pending removal. The parties are in dispute about the effect of the exercise of such powers in March 2005 on Ms Klusova’s right to continue to work in the United Kingdom, on the lawfulness of her continued employment by the Council, and on her claim for unfair dismissal.

It is contended by Mr Patel on behalf of Ms Klusova that the actions of the Hounslow Office in March 2005 are irrelevant to the Council’s case under section 98(2)(d) ERA, although they might be relevant to the separate issue whether the Council genuinely believed that her continued employment would not be lawful.

I shall deal separately with the submissions on each of the two grounds of dismissal.

Section 98(2)(d): perversity point

Ms Klusova’s principal point is that the ET made a relevant finding of fact, which could not be overturned on an appeal confined to a question of law. It was submitted that the EAT was wrong to conclude that the ET’s finding of a valid in-time application by her with a consequent extension of her right to remain and work in the UK was perverse, bearing in mind the high threshold for establishing perversity by the fact finding tribunal: Yeboah v. Crofton [2002] IRLR 634.

In allowing the Council’s appeal the EAT held that the ET erred in holding that there was evidence of Ms Klusova having a lawful status to work at the date of her dismissal. The EAT reasoned as follows-

“ 22. In our judgment this case truly is one which meets the standards of Yeboah v. Crofton. There was no material available to the Tribunal to uphold the assertion that there had been a valid application made in time to the Home Office, that is before 15 May 2004, for permission to stay and/or to work. We accept the submissions of Mr Cohen and his detailed passage through the documentations indicating where this finding might have come from. The evidence upon which the Tribunal made the decision is simply not made out in the documentation. It is extraordinary that whether the case was handled by Messrs Kapor [Ms Klusova’s previous solicitors] or by Walkers no documentation exists either with them or by the Home Office to indicate that a proper application was made. It was certainly not placed before the Respondent. Thus we hold that the perversity point succeeds.”

On the appeal Mr Jonathan Cohen on behalf of the Council insisted that the EAT had “no alternative but to find perversity”, as the finding that an in-time application had been made was unsupported by any evidence. The finding was even inconsistent with Ms Klusova’s own evidence that a work permit application in February 2004 was her in-time application for variation of the leave to remain.

While it is true that no documentary evidence of the application was produced (e.g. copies of the application(s) or acknowledgement letters from the Home Office or chasing letters), it is incorrect to say that there was no evidence. There was Home Office evidence in the form of the letter of 23 November 2005, as well as oral and written evidence from Ms Klusova herself.

Mr Cohen was very critical of her evidence, pointing to its inadequacies and inconsistencies. There is no agreed note of her oral evidence. No order was sought or made in the EAT for the production of the relevant parts of the Chairman’s notes of her evidence.

There was, in my judgment, sufficient evidence for the ET to make the factual finding (referred to in paragraphs 6.3 and 7.1 of its decision) that Ms Klusova had made a valid in-time application, which resulted, pending determination, in an extension of the period during which period she was legally entitled to remain and work in the United Kingdom.

On this aspect of the appeal Mr Cohen developed an alternative argument which involved acceptance of the ET’s finding of an in-time application. This submission was based on the failure of Ms Klusova to appeal or challenge the lawfulness of the decision of the Immigration Officer in March 2005 to impose conditions on her residence, in particular preventing her from taking up employment in the United Kingdom. Mr Cohen suggested that the imposed and unchallenged condition was the short answer to the case. Ms Klusova’s solicitors had not relied on the provisions in the immigration legislation in support of an argument that she was entitled to continue working or that the Immigration Officer had no power to impose on her when she was released from detention a condition preventing her employment.

Mr Cohen contended that both parties would have contravened the applicable enactments, if the Council had permitted Ms Klusova to continue to work after the condition was imposed. Further, it was not within the power of the ET to declare that the condition imposed by the Immigration Officer was a nullity. This could only be achieved on an appeal from the decision of the Immigration Officer or on an application for judicial review of that decision. It would have been inappropriate for an employment tribunal, as a statutory tribunal with a limited specialist jurisdiction, to allow Ms Klusova to mount a collateral challenge to the validity of the condition imposed by the Immigration Officer under his statutory powers. The ET had to treat the condition preventing employment as valid and lawful when deciding whether Ms Klusova could lawfully continue to work for the Council.

In my judgment, the submission based on the imposed condition is misconceived. As Laws LJ pointed out in the course of argument, it would be a very surprising state of the law if the legal consequences of making an in-time application for variation of a limited leave to remain, which are spelt out in the primary legislation and affect the lawfulness of continued employment, could be nullified by the executive act of an Immigration Officer when setting conditions on the release of the immigrant employee from detention.

This is not a case in which Ms Klusova was seeking, in her unfair dismissal proceedings, to challenge or set aside the condition imposed by the Immigration Officer on her release from detention. I do not interpret the relevant immigration legislation as having the legal effect suggested by the Council. The discretionary powers of the Immigration Officer to set conditions preventing employment must be construed in the context of the scheme and provisions of the primary provisions in the immigration legislation. As already explained, immigrants who are in the United Kingdom under a limited right to remain and who make a relevant in-time application are permitted by the legislation to continue employment pending the determination of the application. The Immigration Officer in the Hounslow Office appears to have been unaware of the statutory effect of an in-time application on her continued right to work under an expired limited leave to remain. This would explain why the Hounslow Office treated Ms Klusova as an unlawful overstayer, who was not entitled to work and who could be detained and subjected to conditions preventing employment.

In my judgment, the Immigration Officer had no power to counter or cancel Ms Klusova’s entitlement to work during the extension of the limited leave to remain consequent on her making an in-time application. On the contrary, the Sheffield Office accepted that Ms Klusova could lawfully continue in employment pending the determination of a valid in-time application. In rejecting the Council’s reliance on section 98(2)(d) the ET was entitled to find that the factual position on the making of an in-time application was as stated in the Home Office letter before it. It is difficult to see on what basis the ET could have disagreed with what the Home Office stated was the fact on this point.

Section 98(1)(b): genuine belief point

On the issue of “some other substantial reason” for dismissal, I agree with the EAT. The ET erred in law in finding that the Council did not genuinely believe that the continued employment of Ms Klusova would contravene statutory restrictions. I am mindful, of course, of the high threshold already mentioned to justify interference on the ground of perversity, even with an inference drawn by an ET from the primary findings of fact.

The ET singled out two aspects of the evidence when dealing with the issue of genuine belief. The first was the Council’s failure to notify or consult with Ms Klusova about its concerns on the continued lawfulness of her employment, so that her solicitor could seek the necessary clarification from the Home Office. The second was that the Council had not considered the guidance in the Code of Practice issued by the Secretary of State.

The genuineness or otherwise of the Council’s relevant belief is a matter of inference from admitted or established primary facts. In my judgment, no inference of an absence of genuine belief could reasonably have been drawn by the tribunal from the two particular facts expressly singled out. At most these facts are evidence a lack of due regard by the Council for the procedure for a dismissal decision which it did not believe applied. They are not, in my judgment, evidence of a lack of genuine belief in the unlawfulness of Ms Klusova’s continued employment.

More importantly there was cogent evidence which the ET does not mention in this part of the decision. Of course, an ET does not err in law simply because it omits to set out or refer to all the relevant evidence in its decision; but in this case there was uncontradicted evidence of the inquiries made by the Council of the Home Office prior to the dismissal and of the information supplied by the Home Office from March 2005 onwards leading the Council to believe that its continued employment of Ms Klusova contravened restrictions under an enactment. No reasonable tribunal having regard to this evidence could have concluded that the Council’s belief, founded on material supplied to it by the Home Office, was not genuine.

Procedural unfair dismissal: statutory procedures

The setting aside of the finding by the ET on the genuine belief point does not, however, mean that the unfair dismissal claim fails, as it did in the EAT in consequence of its conclusion that the Council could rely on section 98(2)(d) ERA. The Council’s success on the section 98(1)(b) point of “some other substantial reason” does not make the dismissal procedurally fair. Liability for an automatic procedurally unfair dismissal arises by reason of the Council’s failure to follow the statutory procedures applicable to a dismissal for “some other substantial reason.”

I would allow Ms Klusova’s appeal against the decision of the EAT on the section 98(2)(d) point. There was no error of law by the ET. The EAT ought not to have held that the ET’s finding of fact on the in-time application point was perverse.

I would affirm the EAT’s decision on the section 98(1)(b) point. The EAT correctly held that the ET made a perverse finding of an absence of genuine belief on the part of the Council.

The issues of illegality and frustration noted by the EAT do not arise, as there was no illegality or other impediment in the way of the Council continuing to employ Ms Klusova.

The outcome is that the dismissal of Ms Klusova was unfair by reason of non-compliance with the prescribed dismissal procedures. It will be for the ET to decide what remedies should be granted to Ms Klusova. The matter is remitted to the ET for a remedies hearing.

I add two comments.

First, it is a great pity that this case got as far as this. The material before the court shows that the signals, which were sent out to the parties by the various offices in the Home Department dealing with Ms Klusova’s legal status to work, caused misunderstanding.

Secondly, at the outset of the hearing the state of the papers submitted for this appeal was unsatisfactory. In a case in which the issue is whether a finding or conclusion of the ET is perverse it is normally necessary to have available for the Court of Appeal all the relevant documents that were before the ET. These were not made available to the court until requested in the course of the hearing.

I agree.

I also agree.