Written by Brabners LLP
EAT confirms that employee should be given the right to appeal against dismissal resulting from a failure to prove right to work in the UK
In what is a vitally important decision for employees and employers alike, the Employment Appeal Tribunal (‘EAT’) has confirmed that an employee should be given the right to appeal against dismissal resulting from a failure to prove his right to work in the UK.
In this case, the EAT overturned an employment tribunal’s (‘ET’) decision in Afzal v East London Pizza Limited t/a Dominos Pizza and held that employees should be provided with a right of appeal when they are dismissed as a result of their failure to prove their right to work in the UK. The employer in the case (Dominos) dismissed Mr Afzel (‘A’) in the belief that they may have been exposed to criminal and civil penalties if they continued to employ him. The EAT held that, whilst this might be the case, there is no reason why a right of appeal could not have been granted and the employee reinstated if sufficient proof of the right to work in the UK was provided at the appeal stage.
The employee, A, was employed by Dominos since October 2009, working his way up through the business. He had been given ‘time-limited leave’ to work in the UK, having married an EU national in 2011. A’s leave to work in the UK expired on 12 August 2016. A was allowed to continue to work in the UK after this date provided that he had applied for the relevant documentation that evidenced his right to permanent residence in the UK, before 12 August 2016.
Throughout the course of 2016, Dominos reminded A to provide them with evidence that his application had been made and that it should be made no later than 11 August 2016. On 12 August 2016, A e-mailed evidence to Dominos who could not open the relevant attachments. Out of concern that they may be exposed to criminal and civil penalties, Dominos dismissed A without the right to appeal. Following the dismissal, A produced the relevant documentation and Dominos offered to re-employ A as a new starter. Although, this proposal would mean that A’s continuous employment would be broken and he would not be back paid for the period between dismissal and re-employment. A claimed unfair dismissal.
At first instance, the ET found that as Dominos held a genuine, reasonable belief that A’s continued employment was prohibited by statute and that they were entitled to act quickly to dismiss A out of fear that they may be exposed to criminal and civil penalties. The more pertinent question was whether they were right to bar his right to appeal against the dismissal decision. The ET found that the question was whether the Dominos had “reasonable grounds” for their belief that A had not made the application for permanent residence before his work permit expired. It was held that they did have “reasonable grounds” for their belief at the time they dismissed A and their belief should be assessed at that point (notwithstanding that additional paperwork was provided by A after his dismissal). The ET did not consider that it was unfair for the employer to bar an appeal against dismissal and dismissed A’s claim.
The EAT has recently heard A’s appeal of this decision. The EAT noted that ACAS’s Code of Practice on Disciplinary and Grievance Procedures recommends that the ability to appeal against dismissal is provided and that the provision of an appeal against dismissal in employment practices is “virtually universal”. The EAT held that although tribunals can find on the facts that a dismissal is indeed fair without provision of an appeal being needed, this could only be found in exceptional circumstances where such an appeal would be futile. The EAT held that the ET was wrong in this claim to hold that A had nothing to appeal and noted that an appeal may have resulted in A being reinstated if the right to work had been established at that stage. The EAT also considered that at no point during this course of action would Dominos have been at risk of criminal and civil penalties. The EAT allowed A’s appeal and referred the matter back to an employment judge to decide whether the dismissal was unfair.
This is an important and straightforward decision for employers and employees to be aware of. It highlights the importance of allowing individuals the right to appeal against their dismissals in general and also specifically confirms this point where there is a failure to prove right to work by an employee. It stands to reason that if an appeal would have merit and cause no criminal/civil liability on behalf of the employer, then the right to make an appeal should be provided in the interest of fairness.
This article is for general guidance purposes only and should not be used for any other purpose.