For any employee, experiencing wrongful or unfair dismissal can be deeply upsetting and stressful. After all, we work to pay the bills and to develop our careers, and if this is taken away due to no fault of our own, this can leave us in an uncertain situation. This is further magnified for migrant workers in the UK, who can’t simply switch to another employer, or spend time looking for a new job if they are unemployed as this may breach their visa conditions.
As a Skilled Worker visa holder (previously referred to as a Tier 2 General visa), if you are no longer employed by your sponsor, your visa will be curtailed by the Home Office, and you will either need to apply for a new visa, or leave the country. For migrant workers supporting their family, there is even more pressure. In this article, we will explain the rights of migrant workers on a Tier 2 or Skilled Worker visa to appeal against unfair dismissal from their sponsored job in the UK.
What Is Meant By ‘Unfair Dismissal’?
While it may seem fairly obvious that unfair dismissal is being dismissed unfairly, it is important to understand the difference between this breach of employment law, and other types of unlawful dismissal. Unfair dismissal means that your employer has terminated your contract without good reason and without following the proper employment disciplinary process. The Government website confirms that it would be considered unfair dismissal if you are let go from your employer because you:
- asked for flexible working
- refused to give up your working time rights - for example, to take rest breaks
- resigned and gave the correct notice period
- joined a trade union
- took part in legal industrial action that lasted 12 weeks or less
- needed time off for jury service
- applied for maternity, paternity and adoption leave
- were on any maternity, paternity and adoption leave you’re entitled to
- tried to enforce your right to receive Working Tax Credits
- exposed wrongdoing in the workplace (whistleblowing)
- were forced to retire (known as ‘compulsory retirement’)
You may also hear the term ‘constructive dismissal’, which means that you were forced to make the decision to leave your job because of the negative actions of your employer. This often occurs because of the belief that if you leave of your own choice, there is no need to follow the proper dismissal process. Constructive dismissal typically occurs following acts of bullying, harassment, sudden demotion in your role for no reason, or enforcing unreasonable changes on you.
Either of these situations is considered a breach of employment law in the UK, and you should seek advice from an employment and immigration Solicitor where possible to ensure you have the advice and support you need.
What Does The Law Say About Unfair Dismissal?
Under section 94 of the Employment Rights Act 1996 (ERA), employees have the right not be dismissed unfairly provided that they:
- have at least two years of continuous employment with their current sponsored employer (if their employment started after 6th April 2012)
- are dismissed for an automatically unfair reason as specified under section 108(3) of ERA 1996 (such as whistleblowing or trade union membership).
If you have been dismissed unfairly, you can bring a claim for unfair dismissal with the Employment Tribunal. You can do this if you are a migrant worker or not. The Tribunal will look to establish if there are any grounds to justify the dismissal.
The Importance Of Acting Quickly
The challenge for a migrant worker who has been unfairly dismissed is that the employer is legally required to inform the Home Office of their leaving within ten days. Once the Home Office processes this change of circumstances, the migrant worker will then receive a letter advising them that their leave is being curtailed (i.e. cancelled and reduced to 60 days).
In practice, the Home Office may take several weeks to process this request, and hence you may have more time to appeal, and or find a new job and apply for a new work visa. By putting in place legal representation with a Solicitor who understands your immigration position, they will act quickly to ensure you are never in breach of your visa terms. If necessary, they will write to the Home Office to explain the situation.
What May The Tribunal Decide?
If the employer is unable to prove that they followed a fair and transparent process in dismissing you and that you were unfairly dismissed, the Tribunal has a range of remedies at its disposal. If you win your case, the Tribunal may decide to grant you a basic financial award, a compensatory award, reinstatement or re-engagement. Reinstatement means that the employer must treat you as though you were never dismissed in the first place, meaning you can return to your role.
Re-engagement is slightly different as the employer is required to put you back into another role which is comparable to the job you were dismissed from. That said, it is essential that you are put back into a role which fits with your existing Certificate of Sponsorship. An employer cannot simply put you into a lower-paid role or into a job in a different occupation (i.e. with a different standard occupation code), as this would place you both in breach of immigration law.
It should be understood, however, that the employer may still refuse to comply with an order issued by the Tribunal, and likewise, an employee may not wish to return to the employer given the circumstances of their dismissal. This is why engaging an immigration Solicitor is essential as they will do all they can to ensure your immigration status is protected, giving you the opportunity to find new employment.
Final Words
It cannot be overstated how important it is to engage a Solicitor if you have been unfairly dismissed from your sponsored role. Doing so will ensure you have the best chance of seeking justice while protecting your legal immigration status in the UK.
