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The Right to Work and the Compensatory Award

3rd September, 2012

Where an Employment Tribunal upholds a claim of unfair dismissal, employers may have to pay compensation, or may be required to consider reinstatement or reengagement. Compensation comprises two elements; the basic award (based on a formula consisting of the age of the employee, their length of service and average weekly pay) and the discretionary compensatory award. What happens if, between the date of dismissal and the date of the tribunal, the employee loses their entitlement to work in the UK?

This question was answered in the recent case of Kings Castle Church v Okukusie. Mr Okukusie worked at Kings Castle Church as a volunteer until March 2006, when he became an associate pastor. Mr Okukusie applied to the UK Border Agency for permission to live and work in the UK, which he was granted up until 11 of October 2009. In August 2009 Mr Okukusie applied for indefinite leave to remain in the UK, mistakenly believing he was eligible and requesting a letter of support from his employer (which they provided). In January 2010 Mr Okukusie received notification that his application for indefinite leave was denied. This was because he had not been in paid employment in the UK for a continuous period of five years. However he was not required to leave the country and was permitted to work provided that he appealed the decision. Mr Okukusie failed to inform his employer of his rejected application for indefinite leave; instead he sent an email to his employer saying that he had only received an acknowledgement of receipt of the application. Mr Okukusie was dismissed on 10 February 2010, for not providing his employer with the immigration information, and for misleading his employer.

The Employment Tribunal found that Mr Okukusie had been unfairly dismissed by Kings Castle Church. It held that any reasonable employer would have investigated the immigration information further. It ruled that the Church was wrong to have acted immediately; assuming Mr Okukusie was remaining in the UK illegally and dismissing him based on that fear, without checking whether those fears were justified. The Tribunal ordered compensation from the date of dismissal to the date of the hearing, plus a further six months’ salary for future loss. However, Mr Okukusie’s appeal against the UK Border Agency’s original decision was refused. The letter notifying him that he had no right to work, or remain in the UK after 10 May 2010, was not included in the hearing bundle. This meant that the Tribunal had awarded unfair dismissal compensation for a longer period than Mr Okukusie was permitted to work in the UK.  Kings Castle Church appealed this decision and the Employment Appeal Tribunal held in their favour.

The Employment Appeal Tribunal held that the tribunal should have expected a judgment to have been made regarding Mr Okukusie’s rights to live and work in the UK following his appeal. Upon not seeing one, the tribunal should have investigated, especially as the claimant had failed to provide documentation in compliance with an Order by another Judge. The Employment Appeal Tribunal ruled that the tribunal had mistakenly awarded compensation based on earnings that Mr Okukusie would not have been entitled to earn, as they went beyond the period that he was at liberty to work in the UK. The Employment Appeal Tribunal reduced the original compensatory award, replacing it with a sum which covered his loss of earnings up until 10 May 2010.
For further information or advice on claims for unfair dismissal and compensation, please contact Catherine Kerr on 01244 405596 or send an email to [email protected].

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