Disciplinary Action for Reporting Immigration Crime

[AbigailHH]

My employer is pursuing disciplinary action against me for reporting it for immigration crime. It knew a job applicant didn’t have a work visa, but employed them anyway. I reported this to the relevant authorities.

The allegation against me is that by reporting my employer to the relevant authorities I brought my employer into disrepute. And bringing my employer into disrepute is categorised in its Conduct and Disciplinary Policy as gross misconduct punishable by dismissal.

Is my employer able to do this?

Is anyone aware of any case law or official guidance I can take to the disciplinary hearing stating it cannot take disciplinary action against me for reporting it for immigration crime?

Do they have a whistleblowing policy?

Wow, I would hope you are protected

I would hope you would have a degree of protection as a whistle blower. Are you in a union?

I don't think it matters if they have a whistleblowing policy or not.

This might help

Whistle blowing policy needs to be looked at here. Also get yourself a union, make sure you take someone with you to every meeting

Thanks for replying, BakedBeans47.

It will have a whistleblowing policy, but I didn’t report it via whistleblowing. I contacted the relevant authorities and sent a text message to my manager telling her what I’d done, because I felt if I did nothing I would be complicit in the immigration crime, as I knew about it. The text message was later used as evidence of bringing my employer into disrepute.

I think you need advice. Maybe pay to see a solicitor. And definitely take someone sensible to the meeting with you.

Did anyone hear the news this morning about the two guys sacked from their job at Liverpool prison for raising health and safety concerns. They were ruled to have been unfairly dismissed.

Thanks, notapizzaeater. So do I.

Thanks, scurryfunge. I am in a union, but I’m doing a lot myself, as my union rep is very busy unfortunately.

Thanks, Mumski45. The link is really helpful!

Thanks, OurMiracle1106. Good advice.

The stress of what’s happening is almost unbearable. I’ve spent the past few weeks in bed (I’ve been suspended) and have been taking strong antidepressants (150mg of Venlafaxine twice daily). I haven’t been eating or sleeping properly. It seems so unfair because I thought I was doing the right thing.

I just want to make sure I explore every avenue to prepare the best defence I possibly can.

Definitely look at the whistle blowing legislation. Had you raised your concerns with your employer before you made the report? What is your company's policy on immigration issues? Do they have any duty of care to check immigration status?

You should be protected as a whistleblower,

You really should push your union on this. Call the branch and explain the situation, they may have reps who specialise in whistleblowing

As far as I'm aware they cannot discipline you for alerting the authorities to criminal behaviour but you do need some proper legal/employment advice.

You need to contact ACAS ASAP.

Www.acas.org.uk

You clearly haven’t brought the employer into disrepute; they have brought themselves into disrepute by doing something illegal.

You need to get legal representation as soon as possible.

It seems unlikely you'll be able to go back to your job, so you need to start thinking about what kind of severance deal you might be able to negotiate.

I'd say you have a fair case for whistleblowing if they either dismiss you or give you a warning.

I don't think it matters if they have a whistleblowing policy or not.

Well, in that whistleblowers are protected but it can still be helpful. Which is why most reputable employers would have one so an employee would know how to raise concerns.

it will have a whistleblowing policy, but I didn’t report it via whistleblowing.

If you reported it to the proper authority (border agency or whatever they’re called this week) it certainly sounds dodgy to discipline you. The whistleblowing policy may say you should raise it internally but if you can’t do that (as would seem likely here if the company were compliant in the illegal behaviour) it would be legitimate to take it to the the proper authority. If you’d phoned the daily mail they might have an argument but this sounds dodgy indeed.

Get your union rep to get their finger out their arse

The legislation that you are looking for is the Employment Rights Act 1996.
You made a protected disclosure.
See 43B(1)(a) if you can prove that the employer knew that the worker didn't have the right to work in the UK. Otherwise 43(1)(b).

If you reported to the Home Office or Border Agency it would come under 43F. Otherwise 43G.

You are not required to protect your employer's reputation by keeping their criminal/unlawful acts confidential. See 43J.

www.legislation.gov.uk/ukpga/1996/18/part/IVA

Subjecting you to disciplinary action for reporting their illegal activities is a detriment.

www.legislation.gov.uk/ukpga/1996/18/section/47B

You can complain to an Employment Tribunal. See 48(1A), (3) & (4).

www.legislation.gov.uk/ukpga/1996/18/part/V/crossheading/enforcement

Some more reading for you.

www.gov.uk/check-job-applicant-right-to-work

www.gov.uk/penalties-for-employing-illegal-workers

It does not matter one iota if your employer has a 'policy on immigration ' as policy is not above the law. It is incumbent on EVERY employer to check the papers of EVERY employer and be satisfied that they have leave to remain in the UK and a visa that allows them to work. If this is not the case then the employer will be fined £20k PER illegal employee.

That's terrible op. Has the company been fined for employing this person?

Thanks, itstimeforanamechange. I’ll do as you say. The Liverpool Prison case you helpfully mentioned (link below) seems similar to mine, which is encouraging and a useful case for me to refer to at the disciplinary hearing.

www.bbc.co.uk/news/amp/uk-england-merseyside-43350287

Thanks, SilverHairedCat. Yes. I told my line manager, as soon as I realised what had happened. I think every employer has a legal duty to check a job applicant’s right to work before offering them employment.

Thanks, Violetrose123. I’ll follow your advise.

Thanks, GuntyMcGee. I’ll do as you suggest. Thanks for the ACAS link.

Thanks, UnimaginativeUsername. I totally agree.

Thanks, NotDavidTennant. Good advice, which I’ll follow.

Thanks, shouldaknownbetter.

Thanks, BakedBeans47. I’ll give my union rep a nudge.

Thanks, mariefab. The links and references to relevant sections of legislation are exactly what I’d hoped for. Thank you so much!

Thanks, kittensinmydinner1. You’ve confirmed what I believed to be the case.

Thanks, AnneElliott. Not that I’m aware of and I don’t believe any disciplinary action has been taken against the person that employed them. Just me.

Yes they can dismiss you. It will be then up to you to bring a claim for unfair dismissal and based on what you've said you would have a strong case.

Employers can do what they want as long as they are prepared to pay for the consequences.

I'm concerned that your employer has used suspension to remove you from the workplace, for weeks, in these circumstances.
Suspension is supposed to be a neutral act and is usually justified by the employers need to investigate whatever you are accused of doing.
However, in your case there's nothing to investigate except their own wrongdoing. So, if they intended to discipline you for informing the proper governmental authorities they should already have done so by now.

I wonder if it's possible that they could be using this time to remove the evidence of their crime. Do you have any evidence about the employment of the illegal worker in your possession?

What is your preferred outcome here?
Do you think that you could return to work there or would you prefer a settlement?

To prompt them to end this current state of limbo you could raise a formal written grievance. The grievance would be that you have (so far) been subjected to 2 detriments, i.e. suspension and the threat of disciplinary action, because you made a protected disclosure. That way you can fully document your side of the story. As it would effectively be a reverse disciplinary and their response would be instructive.

Thanks, DumbleDee. Useful to know.

Thanks, mariefab. I do have an email and a document proving the employment of the illegal worker. I’m not really sure of my preferred outcome. I suppose I would just like to clear my name, ensure my reference isn’t affected and move on (to a new job with a new employer). I don’t really know how settlements work. I once knew a colleague at a different employer that was dismissed. She brought an employment tribunal and her employer offered her £1,000 to cancel it. That was back in 2005. Thank you so much for your fantastic advice on this.

It shouldn't be difficult to achieve the outcome that you want along with a nice lump sum. No employer will want this coming out at a public Employment Tribunal hearing. Once your employer gets legal advice I would expect it to be just be a matter of haggling over the wording of an agreed reference and how many thousands of £s in settlement you will be paid.

One proviso, however, would be that your disclosures were of information and not just allegations. This is because mere allegations are not protected.

So, how exactly did you word your disclosure/s?