Unfair Dismissal and Immigration: Employer should have allowed employee a right of appeal when he had been dismissed for failing to evidence his right to work

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Unfair Dismissal and Immigration: Employer should have allowed employee a right of appeal when he had been dismissed for failing to evidence his right to work

Published 6 August 2018

The facts

Mr Afzal was employed by Dominos Pizza. He is from Pakistan, and 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 a document evidencing his right to permanent residence and a continued right to work. So long as he applied before 12 August, he was entitled to work while his application was being considered.

Mr Afzal made the application in time. He did not send his employer evidence about the application until late in the afternoon on 12 August, in spite of being reminded twice to do so. On 12 August, he emailed his employer with two attachments, which he said contained evidence of the application. However, the manager to whom the attachments were sent could not open them. Dominos had not therefore seen evidence of his application before the end of the day on 12 August, when his time limited leave to work expired. Worried about the risk of criminal or civil penalties, Dominos dismissed Mr Afzal. No procedure was followed before dismissing him, and he was not offered a right of appeal. He was, however, offered re-engagement as a new starter (i.e. without continuity of employment or back pay) when Dominos received evidence of his right to keep working.

Mr Afzal claimed that he had been unfairly dismissed.

The employment tribunal held that the dismissal was fair. It considered Mr Afzal had been dismissed because his employer genuinely believed that his employment was prohibited by law. The tribunal considered it to be reasonable for Dominos to hold this belief, and to act decisively on 12 August because it was worried about exposure to criminal and civil penalties. The tribunal did not consider that, looking at the situation as a whole, the failure to offer a right of appeal made the dismissal unfair. It considered that there was “nothing to appeal against” since the relevant question was whether Dominos had reasonable grounds to believe that Mr Afzal had made a valid application by 12 August. Once that date had passed, “there was no basis for the employer to back-calculate or back-fill a belief it did not have on 12 August”.

Mr Afzal appealed to the EAT. He argued that, had he been given a right of appeal, he could have demonstrated that he was entitled to work. The EAT agreed with him, commenting that, if an appeal had been offered and Mr Afzal had produced evidence which satisfied them that he had been entitled to work, Dominos could have immediately rescinded the dismissal without fear of prosecution or penalty. The case was remitted to the tribunal to consider whether the dismissal had been unfair in the absence of an appeal.

What does this mean for employers?

Employers are of course right to be wary when dealing with eligibility to work issues as the ramifications for any business in getting it wrong are so serious. There is a difficult balancing act between immigration legislation and employees’ rights not to be unfairly dismissed. However, giving an employee a right of appeal to a dismissal will help avoid running into problems with unfair dismissal claims without running an immigration risk. The EAT judge in this case commented that “it is good employment relations practice for an employer in circumstances of this kind to offer an appeal. Experience shows that it is an anxious time both for employer and employee when a limited leave to remain or work expires…. 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.”

Afzal v East London Pizza Ltd

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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