Dismissal of a Foreign Worker

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Mrs Winful, a Ghanaian marred to an EEA national, worked for Whitbread Group plc from 2005 but her visa expired on 13th November, 2010.  In October, 2010, Whitbread reminded her that her visa was due to expire and that she would be required to prove to them that she had the right to work in the UK. She was warned that her employment would be terminated if she was unable to produce the proper immigration documentation.  Mrs Winful applied to the UK Border Agency to extend her stay in the UK. A meeting was arranged with Mrs Winful in early  November when her visa expired when it became apparent that the UK Border Agency had returned her application as she was not able to show that she was still with her husband.  She told Whitbread that she was going to reapply.   Whitbread dismissed her on 9th December, 2010 as she had been unable to demonstrate that she had the right to work in the UK and she claimed unfair dismissal.   The employment tribunal held that Whitbread could easily show that on the termination date, Mrs Winful had been unable to provide evidence of her right to work in the UK and the employer’s belief that it would be acting illegally in continuing to employ her was reasonable. Whitbread argued that when dismissing Mrs Wiful, it had a genuine belief that there was no other option but to dismiss her because to keep her on would have been a contravention of the Immigration, Nationality ad Asylum Act 2006. The dismissal was fair and the Tribunal agreed that dismissal was the only possible action open to Whitbread.

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