Disciplinary hearing

[Dios]

Hi,

This is actually from the other side of the table. I have been asked to take a disciplinary hearing next week and the investigation goes something like this:

An employee, was hired in September and set up with a 16hr contract due to him being a foreign student, he must of submitted copies of his passport, visa and NI number as the company will not set him up with a payroll number without them. Recently an internal eligibility to work audit has taken place within the store and the copies of his passport, visa & NI number were missing, the store manager contacted payroll to fax copies that they hold back to the store and the payroll department were unable to find them. The employee was given 14 days to produce the documents and failed to do so, informing the store that they had been submitted to the IND for renewal of his visa which was due to expire on the 31st Oct 2008 and produced a letter say that the employees visa was in the application process. The store decided to suspend the employee and give him another 14 days to produce, now my wife is Chinese and I know that the application process can take 4-6 weeks, but I have been told by the HR team that if he fails to produce the documents next week then I must dismiss.

Surely this can’t be right?

Can anyone give any advise.

 

Thanks Chris

[Ell-enn]

It might be worth pointing out to your HR department that if they cannot find copies of the documents which the employee obviously must have provided in order to start work, then it is their problem not his!

 

If he has a letter to say his passport is with the IND awaiting his visa then they should wait until it comes back. Alternatively they could wait for a discrimination claim........

 

Ell-enn

[godpikachu]

i not an expert on this, but i would say it is correct, as foreigners are expected to produce evidence of their right to work in the UK upon commencing employment, and AFAIK it is now illegal for anyone from outside the EU to be employed without proof of this.

 

if this guy hasnt, or is unable to provide proof of this, then he has no right to work in the UK and thus MUST be dismissed, otherwise the company could face some serious legal repercussions for employing an illegal worker.

 

hopefully someone else will be able to clarify the finer points, or correct me if im wrong, but AFAIK thats the general gist of it.

[Ell-enn]

You are essentially correct. But, this employer must have actually seen the documents in order for the employee to be put on the payroll. The fact that they now can't find their copies is not his fault. He has a letter stating his passport has been sent to the authorities in order for his visa to be renewed.

[godpikachu]

well, if HR has already verified his right to work in the UK, then they should have a copy of it somewhere, if they dont, then as you say, its not his problem, although it wouldnt be unreasonable to ask him for another copy of his documents, just as a double check.

of course, if HR has lost his original documents (passport etc included), well, that is their problem, and its a very big one at that.

[version302003]

why cant the store re fax copies?

[Dios]

It was the inital audit on the store that found them to be missing, it was the store who requested copies from payroll, both sets i.e at store and head office are missing.

 

Chris

[godpikachu]

ooh eck!, its HRs problem that then, not his.

one would presume they would have a record of recieving and checking the original ones, might be worth asking them if they have that.

either way it wouldnt be fair to sack the guy for HRs problem, but it wouldnt be unreasonable to ask him if he would mind supplying a backup copy of his papers, so you can put copies at the store and send some to HR to make sure their file is up to date.

[elche]

The Home Office operate an employer's helpline that will sometimes help re foreign workers eligibility to work in UK whilst applications are being processed.

 

Although I must say I have phoned them more than once and seem to get different info every time.

 

All the info is here: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/currentguidanceandcodes/comprehensiveguidancefeb08.pdf?view=Binary

 

If an employee cannot provide proof of eligibility to work in the UK then this can = a fair dismissal due to stat restriction.

 

BUT in this case you say you may have lost docs so check with home office employers helpline as detailed on link before taking action

 

Che

[godpikachu]

wouldnt lost documents also bring about a DPA problem?, after all if it contains his identity and legal right to work in the UK, then it could be copied and used for others who dont have the right.