Legal Corner: Employer unfairly failed to offer a right of appeal

27th Jul 2018

As the rules relating to an individual’s immigration status have been tightened, employers have had to be more careful about ensuring that its employees have the right to work in the UK. An employer who continues to employ someone after their entitlement to work has expired leaves themselves open to potentially significant penalties. However, an employer’s need to ensure that it fully adheres to the rules can sometimes lead to difficult situations, as was the case in Afzal v East London Pizza Ltd (ELP) trading as Dominos Pizza [2018] UKEAT/0265/17.

Afzal had worked for ELP since 2009, initially as a delivery driver but by 2016 had become an Assistant Manager and a Manager in training. He was from Pakistan, but in 2011 he acquired time-limited leave to work in the UK by virtue of his marriage to a European national. This expired on August 12 2016, however from July 15, 2016, he was entitled to apply for a document evidencing his right to a permanent residence that would continue his right to work, having been a permanent resident for five years.

ELP was used to dealing with employee immigration matters and an HR officer, Cunningham, wrote to Afzal in June and July 2016 reminding him that he needed to provide evidence that he had made an in-time application, and should do so before August 11 to avoid last minute problems. That application would continue his right to work and to be employed. Unfortunately, Afzal did not respond to Mr Cunnigham until 4.28pm on August 12, 2016, when he sent an email with two attachments which he said contained evidence of his application and therefore his continued right to work. Cunnigham could not open the attachments. Therefore, ELP did not have any evidence that an in-time application had been made byAfzal. Cunningham was so concerned about the risk of continuing to employ Afzal after that date, that he posted him a letter on August 12, 2016, informing him that he had been dismissed. No procedure was followed prior to the dismissal, and Afzal was not given a right of appeal.

Afzal brought a claim of unfair dismissal against his former employer. He argued that a failure to provide him with an appeal meant that the dismissal was unfair, as it would have become clear during the appeal process that he had continued to have a right to work in the UK and that the decision to dismiss was therefore incorrect. ELP argued that Afzal was dismissed not because his employment was in fact prohibited by law, but because it genuinely believed that to be the case on August 12 2016. The Employment Judge found that it was reasonable for them to have believed this, and to have acted swiftly in dismissing Afzal for fear of the risk of criminal and civil penalties. He went on to hold that whilst it was generally good employment practice to afford a right of appeal, the failure to do so, in this case, did not render the dismissal unfair, because ‘there was nothing to appeal against’ since the issue was whether ELP had a reasonable belief on 12th August 2016, which they clearly did.

Afzal appeal to the Employment Appeal Tribunal and was successful. The judge found that whilst it was reasonable to dismiss on August 12, 2016, based on the information available, that information was, in fact, wrong and an appeal process would have highlighted that. The dismissal could, therefore, have been rescinded. ELP’s argument that it was impossible to reinstate Afzal if evidence was provided of his right to work after the expiry of the relevant period was considered to be wrong. The judge considered that the dismissal was likely to be unfair, but felt that that judgment, in addition to issues of remedy, should be considered again by the Employment Tribunal.

In the final paragraph of his judgment, the judge gave some advice to employers about the importance of affording a right of appeal in cases like this. He noted that the period immediately before a right to work expired was often an anxious time when documents might be hard to locate or information provided that might ultimately be found to be inaccurate. An appeal process allows an opportunity for issues to be looked at in a slightly calmer manner and possibly for decisions to be reversed. It also goes without saying that an employee must do all that he can to ensure that he provides his employer with up to date information as promptly as possible to avoid a situation where they mistakenly believe that he cannot continue to be employed.

Safia Tharoo, Barrister, 42 Bedford Row, London


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