The Employment Appeal Tribunal (EAT) has overturned an employment tribunal’s decision that a dismissal was fair, notwithstanding that the employer offered no right of appeal against its decision to dismiss.
Mr Afzal had been employed since 2009 and was a highly regarded employee but, he was dismissed when he failed to produce evidence of an in-time application
to extend his right to work. His employer did not give him an opportunity to appeal its decision.
An employment tribunal decided it was not unfair to dismiss Mr Afzal without an appeal given the immigration background.
In Afzal v East London Pizza Ltd t/a Dominos Pizza Mr Afzal was from Pakistan, married to a European national. He acquired time-limited leave to work in the UK, which expired on 12 August 2016. After that time, having been a permanent resident for five years, he had a right to apply for permanent residence that would continue his right to work. He could not apply before 15 July. So long as he applied by the expiry of the current leave, he was entitled to work while it was considered.
The employer’s HR team wrote to Mr Afzal on 3 June 2016 and 15 July 2016 reminding him that he should present it with the evidence that he had made an in-time application 11 August to avoid last minute problems. No evidence was received.
An employer is liable to prosecution and to the payment to substantial civil penalties for employing a person who has no right to work.
Mr Afzal made his application very late in the day and did not send any evidence about it to his employer until 4.28pm on 12 August. At that time he sent an email with two attachments which (he said) contained evidence of the application. However, his employer could not open the attachments.
Therefore, his employer, concerned to avoid any risk from continuing to employ him, had posted notice of dismissal to him on 12 August. He received it on 15 August. No procedure was followed prior to dismissing the Claimant and no right of appeal was afforded to him.
The EAT’s decision
The EAT allowed the appeal. It stressed that at all material times Mr Afzal had in fact had a right to work and, had there been an appeal process that right could have been established. There was no law which would have prevented the employer from reinstating the employee in those circumstances.
Employers are understandably nervous about employing individuals who do not have the right to work, or whose right to work has expired, given the significant penalties they can incur. It is therefore crucial that individuals provide as much evidence as they can, in a timely manner, to reassure their employer. The Employer Checking Service is also available to employers and should be used before any decision to dismiss is made.
However, it is now beyond doubt that offering an appeal in these types of dismissal cases is not just good practice but crucial if the employer is to avoid a finding of unfair dismissal.
The Employment Judge in this case 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 I might add that 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. 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. The appeal process affords an opportunity for this kind of case, which can result in real feelings of injustice, to be looked at again.”