Breach of an enactment

Case 8: The facts

US national Dr Kelly was dismissed when her leave to remain expired, even though she still had permission to work from the Department for Education and Employment. Her employer said it would be breaking the law by continuing to employ her, leaving it open to prosecution under the Asylum and Immigration Act.

The ruling

The Employment Appeal Tribunal (EAT) held that it would not have been illegal to continue employing Dr Kelly, so her dismissal was unfair. Although it is generally an offence to employ someone who does not have leave to remain, there are exceptions – one of which is that the employee is permitted to work under the immigration rules. As Dr Kelly had permission to work, there was no breach of any Act and her employer could not rely on “breach of an enactment” as a fair reason for dismissal under section 98(2)(d) of the Employment Rights Act.

The EAT also said that dismissal for breach of an enactment will not always be reasonable; it could be, for example, that something could be done to remedy the position.