Employees are given a chance

Employers who dismiss an employee without an appeal for failure to prove their right to work in the UK could be liable for Unfair Dismissal.

The case of Afzal v East London Pizza Ltd (t/a Dominos Pizza) is important for both employers and employees alike, as the Employment Appeal Tribunal ( EAT) held in April 2018, that the failure to allow Mr. Afzal the right to appeal the decision denied him an opportunity to provide the relevant information and thereby rendering his dismissal unfair.

The EAT’s decision overturns the Employment Tribunal’s (ET) decision.

Facts of the case

Mr Afzal, who is Pakistani and married to an EU national, began working for Domino’s Pizza in 2009 as a delivery driver, working his way up the company’s ladder until he became an assistant manager in August 2016.

At the time, Mr Afzal was on a time-limited leave to work in the UK, which was due to expire on 12 August 2016. As he had been resident in the UK for 5 years, he was permitted after that time, to apply for right to permanent residency, which would in effect, continue his right to work provided that he applied for the relevant documentation evidencing his right to permanent residence in the UK before 12 August 2016.

Over the course of 2016, Dominos reminded Mr Afzal about the application and requested evidence that the application had been made, giving him a deadline of 11 August 2016 to produce the evidence. If he did, he would be entitled to still work whilst his application was being considered. Although Mr. Afzal made the necessary application on time, he did not send Domino’s the evidence until 12 August 2016 when his time limited leave to work would expire. Mr Afzal emailed Domino’s the evidence, however Domino’s was unable to open the attachments he had sent. Concerned that they may be liable to prosecution (under the Immigration, Asylum and Nationality Act 2006) and the payment of significant fines for employing a person without right to work in the UK, Domino’s dismissed Mr Afzal with no right to an appeal. When Domino’s did receive evidence of his right to keep working, Mr Afzal was offered re-engagement as a new starter, meaning that he would not be entitled to continuity of employment or back pay and therefore, claimed that he had been unfairly dismissed.

At first instance the ET rejected Mr Afzal’s claim for unfair dismissal, holding that Domino’s held a genuine, reasonable belief that Mr Afzal’s continued employment was prohibited by law. The tribunal failed to consider that, looking at the situation as a whole, the failure to offer a right of appeal made the dismissal unfair.

Mr Afzal appealed against the decision, arguing that, had he been given a right of appeal, he could have demonstrated that he was entitled to work.

The EAT agreed with Mr Afzal stating that “it is good employment relations practice for an employer in circumstances of this kind to offer an appeal”. Further noting that if Domino’s was satisfied by the provision of evidence and/or by its own enquiries that Mr Afzal was entitled to work, there was no inherent reason why it should refuse to reinstate him.

What does this mean for employees ?

The EAT mentioned that “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….. the appeal process affords an opportunity for this kind of case, which can result in real feelings of injustice, to be looked at again”.

Therefore, an employer should afford employees a right to appeal in cases of failure to prove right to work in the UK, or else they could be liable for Unfair Dismissal.

If you think you have been unfairly dismissed, please do not hesitate to get in touch with us.