In Baker v Abellio London Ltd, the EAT held that an ET erred in deciding the employer was obliged by S.15 of the Immigration, Asylum and Nationality Act 2006 to hold that it was unlawful to employ Baker, a Jamaican national, who, although he had the right to work and reside in the UK, did not provide documents other than a passport to prove it. S.15 did not apply to Baker as he was not subject to immigration control. In any event, the reference in S.15(3) to seeking documents from an employee provides a defence against a penalty. It does not impose an obligation to obtain these documents. The ET’s decision that the dismissal fell within S.98(2)(d) Employment Rights Act 1996 (ERA 1996), i.e. continued employment would be in contravention of the law, was set aside. However, the case would go back to the ET to decide whether dismissal because of a genuine but mistaken belief that Baker’s employment was illegal fell with S.98(1)(b) ERA 1996, i.e. some other substantial reason.

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