Case update (2): Unfair dismissal – Right to work and to appeal

Summary:  Is it fair to refuse to give a right of appeal against dismissal, where the employer has reasonably (but mistakenly) reached the conclusion that an employee has no right to work in the UK?

No, says the EAT in Afzal v East London Pizza Ltd t/a Dominos Pizza, available here.

Facts:  Mr Afzal, the employee, had been given time-limited leave to work until 12 August 2016. He was a Pakistani national who had been married to an EU national since 2011.  He had been employed by Dominos Pizza, the employer, since October 2009, initially as a delivery driver and working up to acting assistant manager and a manager in training.

From 15 July 2016, Mr Afzal was able to apply for evidence of his right to permanent residence, which would extend his right to work in the UK.  As long as Mr Afzal made the application in time, he would be permitted to work while it was being considered. Although he made the application at the last minute, it was still made in time.

Despite being reminded by the employer to provide evidence of his application before the deadline of 12 August 2016, Mr Afzal did not email the employer until that date. The employer could not open the attachments to the email and notified Mr Afzal of this.  However, with no evidence to suggest Mr Afzal was entitled to work, the employer posted him notice of dismissal on 12 August 2016 to avoid any risk to the business from continuing to employ him.

The employer did not follow any procedure before dismissing Mr Afzal and he was not given the right of appeal against the decision as there was “nothing to appeal against“. When the evidence was subsequently provided, the employer offered re-engagement but as a new starter.  This would mean that Mr Afzal’s continuity of employment would be broken and he would not be entitled to lost wages from the date of dismissal.

Mr Afzal brought a claim for unfair dismissal.

The Tribunal dismissed Mr Afzal’s claim.  It held that the reason for dismissal was for “some other substantial reason”, namely that the employer believed that Mr Afzal’s employment was prohibited by statute. The Tribunal considered it fair for the employer to have held this view and to have taken the action that it did. As for the appeal, the Tribunal agreed that there was “nothing to appeal against“.  It held that once the date had passed, the employer could not “back calculate … a belief it did not have on 12 August“ – the belief that a valid application for an extension had been made.

Mr Afzal appealed.

The EAT allowed Mr Afzal’s appeal. While the employer genuinely believed that Mr Afzal did not have the right to work because they did not have evidence of this, their belief was wrong. The EAT did not accept that an appeal was futile and considered that the appeal process could have satisfied the employer that Mr Afzal had the right to work in the UK and had made his in-time application.  An appeal would have enabled the employer to make various checks to satisfy themselves that the application was made in time and they could have revoked the dismissal.

The EAT concluded that it was “good employment relations practice“ for an employer to offer an appeal in circumstances like these. The EAT commented that “experience shows that it is an anxious time both for employer and employee when a limited leave to remain or work expires and a further application has to be made. Difficult technical questions may arise; relevant documents may be difficult to find; and […] experience shows that the Employee Checking Service is not always fully informed or up to date. Affording an appeal gives an opportunity for matters of this kind to be considered again rather more calmly than can be done as the time-limit expires.”

Implications:  The decision highlights the importance of employers implementing fair procedures when the need to dismiss employees over immigration status does arise. As the EAT recognised, this would mitigate the harm caused when the employer wrongly believes that the employee does not have the continuing right to work. A dismissal in these circumstances is more likely to be fair if the employee has a right of appeal, even if the employer considers that there is nothing to appeal against.