A Fair Day’s Work for a Fair Day’s Pay
14 February 2013 by Lawrence Adams
Happily there has been a recent decision handed down from the Employment Appeal Tribunal (“EAT”) that seems to follow logic and tracks argument we, hopefully, can all agree on.
The Claimant, Mr Okukusie, was a pastor. When he began work he applied for permission from the UK Border Agency (“UKBA”- one of my favourite acronyms) to live and work in the UK. His application was successful and was granted to last until 11 October 2009.
However… On 19 January 2010 Mr Okukusie received a letter from UKBA refusing his application to remain in the UK indefinitely. Not quite he had planned I’m sure. Then, as a knee jerk reaction, the church he worked for dismissed him on 10 February 2010.
The Employment Tribunal found that Mr Okukusie’s dismissal was unfair because the church who had employed him acted automatically and only on the information it had. The Tribunal held that they should have investigated further. The Tribunal therefore awarded compensation to Mr Okukusie to the date of dismissal and future loss for a further 6 months.
However, despite this seemingly straightforward ruling a material letter from UKBA dated 18 May 2010 had not been included in the bundle and therefore had not be reviewed by the Tribunal. The letter in question stated that Mr Okukusie’s appeal against the UKBA decision was refused and that he had not right to remain in the UK past 10 May 2010.
It was then decided by the EAT (in a delicious irony) that the Tribunal should have investigated further. The EAT stated that the Tribunal should have been alerted to a problem because of the letter dated 19 January 2010 and additionally Mr Okukusie had failed to produce documentation under an order by another judge.
The final result was that the original award of compensation was overturned and substituted by an award of loss of earnings up to 10 May 2012. It was found that the Tribunal erred in awarding compensation based on earnings with the church over the period Mr Okukusie would have been permitted to work.
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