EAT backs employee’s right to appeal in right to work case

The Employment Appeal Tribunal (EAT) has recently decided that a claimant who was dismissed after he failed to produce evidence of his right to work…

The Employment Appeal Tribunal (EAT) has recently decided in Afzal v East London Pizza Ltd t/a Dominos Pizza that a claimant who was dismissed after he failed to produce evidence of his right to work in the UK should have been allowed the right to appeal.

The facts

Mr Afzal worked at East London Pizza (a local franchise of Domino’s Pizza) from October 2009 until August 2016, rising in rank from delivery driver to manager in training. Mr Afzal is from Pakistan and married a European national in 2011. He had the right to work in the UK until 12 August 2016. By then he would have been in the UK for 5 years and could apply to the Home Office for permanent residence, evidence of which would allow him to continue working.

A member of the HR East London Pizza Ltd HR team wrote to Mr Afzal on 3 June and 15 July 2016 to remind him that he must provide evidence of his application to extend his right to work. On 12 August 2016 at 4:28pm, Mr Afzal sent an email to his employer with evidence of his application, but the two attachments could not be opened. Mr Afzal was informed that the evidence could not be opened, but did not re-send the information. By the end of 12 August, no evidence had been seen that Mr Afzal still had a right to work and his employer dismissed him to avoid civil and criminal penalties under the Immigration, Asylum and Nationality Act 2006.

The employer’s dismissal letter failed to offer Mr Afzal the right to an appeal. He took his case to London East Employment Tribunal, where his claim for unfair dismissal was rejected. His employer argued in the tribunal that there was "nothing to appeal against" and that new evidence would not have undermined the reasonableness of their belief at the time of dismissal. The Tribunal recognised that offering employees a chance to appeal a dismissal decision was “generally good employment practice”. However in this in this case there was “nothing to appeal against” as the Respondent believed Mr Afzal had not made the application to extend his leave at the time he was dismissed.

The decision

Mr Afzal’s appeal was allowed by the EAT. It held that the initial decision to dismiss Mr Afzal was justified. However, if there had been an appeal process, the Respondent could potentially have been satisfied that Mr Afzal did have the evidence of right to work and the contract could have been revived "without fear of prosecution or penalty". Judge Richardson said “There will be cases, and in my experience they are not particularly uncommon, where an employer wrongly believes that an employee does not have a continuing right to work”. He stated that “The appeal process affords an opportunity for this kind of case, which can result in real feelings of injustice, to be looked at again.”

The EAT chose not to replace the tribunal’s decision with its own finding of unfair dismissal and the case was sent back to the employment tribunal for reconsideration.

Why is the judgment important?

This case is an important reminder that the whole of the dismissal process, including an appeal, is relevant to the question of fairness. This applies just as much to ‘right to work’ dismissals as to dismissals for other reasons (such as conduct or poor performance). Offering an appeal may be particularly important where, as in this case, the employee alleges the full facts of the matter were not established at dismissal stage.

What does this mean for me?

As an EAT decision, this case is legally significant and must be taken into account if a similar issue is considered in future. Even when you believe that you have all the information necessary to make an informed decision to dismiss, the employee should always be offered the opportunity to appeal the decision.

During the appeal process, further important information may come to light and, in the interests of fairness, this should be taken into account (even if it was not available to the dismissing manager).

Even if you strongly suspect that the employee will be unable to produce further evidence of their right to work at appeal stage, allowing them a second chance to explain their situation and produce further documents will protect your organisation’s position and substantially reduce the risk of a successful unfair dismissal claim.

Elaine McIlroy (elaine.mcilroy@weightmans.com) is a Partner in our Employment Pensions and Immigration Team and is based in Glasgow. Elaine is an expert in business immigration law and has extensive experience of advising employers in ‘right to work’ cases. If you have any questions or require any support, please do not hesitate to contact Elaine or speak to your usual Weightmans advisor.

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