Employee dismissed for failure to show right to work still has right to appeal

Posted on: August 22nd, 2018

The Employment Appeal Tribunal has decided that it is unfair to refuse to give an employee the right to appeal against their dismissal, even where the employer has reasonably concluded that the employee has no right to work in the UK.

The Facts
The case of Afzal v East London Pizza Ltd t/a Dominos Pizza concerned Mr Afzal, a manager of Dominos Pizza, who had been employed for nearly seven years. Originally from Pakistan, Mr Afzal married a European national in 2011 and acquired time-limited leave to work in the UK, which expired on 12 August 2016. After that time, as he had been a permanent resident for five years, he had to apply for a document evidencing his permanent residency that would continue his right to work in the UK. As long as he applied by the expiry date, he was entitled to work while it was considered.

Rather late in the day, Mr Afzal submitted his permanent residency application, just on time. On the day that Mr Afzal’s leave was due to expire, Mr Afzal sent an email to Dominos claiming to attach evidence of the application. However, Dominos could not open the attachments to this email. To avoid any civil or criminal penalties under the immigration legislation, Dominos dismissed Mr Azfal. The pizza business did not follow any procedure before dismissing and Mr Azfal was not given any right to appeal his dismissal.

The Decision
Mr Azfal brought a claim for unfair dismissal, which the Employment Tribunal rejected. The ET found that it was reasonable for Dominos to genuinely believe that employing Mr Azfal was illegal and, therefore, reasonable for Dominos to dismiss him as they did. The ET also concluded that it was not unfair to fail to offer a right of appeal, as there was ‘nothing to appeal against’.

However, the Employment Appeal Tribunal disagreed and allowed Mr Azfal’s appeal. The EAT found that, even though they had a reasonable belief that he did not have the right to work in the UK, whether a dismissal is unfair or not is to be judged on the whole process, including any right of appeal. If Dominos Pizza had offered an appeal, Mr Azfal may have produced evidence showing his right to work, and Dominos could have re-instated him without any fear of breaking the law. In this case, there was in fact never a time when Mr Azfal was not entitled to work.

So, what does this mean for employers?
This case is a helpful reminder of the importance of the right to appeal. The EAT Judge was emphatic in his support of appeals and commented that, in modern employment relations practice, the provision of an appeal is virtually universal. Employers should not just take the view that there is nothing to appeal against, as they may avoid unfair dismissal claims by allowing one.
It is worth remembering that the appeals process gives employers and employees the chance to consider matters subject to stressful time limits, like right to work renewals, in a calm environment. As we often see with our clients, an appeal against dismissal can also serve to address mistakes made by an employer during the dismissal process and, whilst dismissals are not often reversed, new evidence may come to light that might just changes matters.

Finally, don’t forget that the ACAS Code of Practice provides that employees are given the right to appeal and a failure to follow the ACAS Code can lead to an employee’s compensation being increased by up to 25%, in a successful claim.

If you require any assistance with handling the dismissal process, or conducting right to work checks, please get in touch with the Employment team here.