Skip to content

Education Law Speed Read – 20/11/17

This week we look at a potential pilot of the new national teacher vacancy service and we also look at the unfair dismissal case of an employee who was not subject to immigration control, but could not provide right to work documentation.

National teacher vacancy service pilot

The Department for Education has confirmed that it is aiming to run a pilot of the new national teacher vacancy service in spring next year.

The jobs board service will be a government run website which aims to “create a single jobs portal for schools to advertise vacancies in order to reduce costs and help them find the best teachers”.

The Department for Education hopes that that the new service will improve recruitment by:

  • “Providing a free publishing channel to schools to reduce the cost of recruitment to schools
  • Improving the quality of vacancy listings meaning schools receive more applications from suitable candidates
  • Creating an accurate official list of all permanent teacher vacancies in the English schools system”

Currently, schools can incur agency fees that are equivalent to 15-20% of a teacher’s salary if they recruit a teacher through a privately run recruitment agency.

A 2016 survey by the National Association of Head Teachers showed that the average spend per school on recruitment was over £3,000 per vacancy.

Mr D Baker v Abellio London Limited

In the case of Mr D Baker v Abellio London Limited, the Employment Appeal Tribunal has found that the dismissal of an employee who was not subject to immigration control, but who could not provide right to work documentation, was not fair.


Mr Baker (B) was a Jamaican national who had lived in the UK since childhood and was employed by Abellio London Limited (Abellio) as a bus driver from 23 July 2012 until his dismissal on 3 July 2015.

It was not disputed that B had the right to live in the UK under the Immigration Act 1971 (IA) and Abellio recognised his right to work in the UK.

In 2015, Abellio carried out an audit after discovering a different employee did not have the required right to work documentation. Abellio asked B to produce evidence including his passport. B did not have a current passport but confirmed that he had the right to live and work in the UK. Abellio decided that B was to be suspended without pay until he could produce evidence of this.

B obtained a passport with the help of a loan from Abellio. However, Abellio also asked B to submit a No Time Limit application. B refused on the basis that he was a British citizen,; had the right to work under the IA and could not afford to make an application. Subsequently, Abellio dismissed B for not providing proof of his right to work and his employment was terminated by reason of illegality under s.98(2)(d) of the Employment Rights Act 1996 (ERA).

Employment Tribunal (ET)

The ET Judge found in Abellio’s favour, holding that his dismissal by reason of illegality was fair. The ET Judge stated that Abellio could not continue to employ B without contravening its obligation under s.15 of the Immigration Asylum and Nationality Act 2006 (IANA) to obtain specific documentary proof that B had the right to work in the UK.

Further, the ET Judge stated that B’s dismissal could also be fair under Some Other Substantial Reason (SOSR).

Employment Appeal Tribunal (EAT)

The EAT held that that the ET erred in holding that B’s dismissal was fair under s.98(2)(d) ERA.

It held that s.15 IANA only applies to those who are subject to immigration control, namely a person who requires leave to enter or remain in the UK under the IA. B was not subjected to immigration control and therefore his dismissal could not fall within s.98(2)(d).

The EAT stated that even if B had been subjected to immigration control, s.15 of IANA does not impose a requirement on an employer to obtain certain documents, it merely gives them an excusal from penalty if certain documents are obtained from an employee.

However, the EAT stated that B’s dismissal could be fair for SOSR, if the employer had a genuine but erroneous belief that his employment was illegal. The EAT remitted the claim on this point to the ET for reconsideration.


Whilst an employer is not breaking the law by not carrying out right to work checks on all employees before employment begins, it is strongly recommended that these steps are taken.

Carrying out a right to work check which complies with the Home Office’s guidance provides a statutory excuse which can lead to the employer avoiding the fine of up to £20,000 if they are found to be employing one illegal worker. It is also essential for organisations who hold a licence to sponsor migrant workers and forms part of their sponsor duties.

This case also demonstrates that employers cannot seek to dismiss an employee by relying on illegality in the situation where an employee does not have the required right to work documentation and they are not subject to immigration controls. It is recommended that prior to dismissing an employee the whole range of potentially fair reasons for dismissal are considered and the appropriate reason(s) selected.

If you have any queries on the above and how it will affect you, please do not hesitate to contact a member of our education team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.

Follow us on LinkedIn

Keep up to date with all the latest updates and insights from our expert team

Take me there

What we're thinking