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Employers! Grant Staff a Right to Appeal Dismissals Relating to Failure to Prove Right to Work or Fall Foul of the EAT

In one of 2018’s most important Tribunal case updates, the Employment Appeal Tribunal (‘EAT’) has held in Afzal v East London Pizza Limited t/a Dominos Pizza, that employees should be granted a right to appeal any dismissal that arises from a failure to prove right to work.

In ­Afzal, Mr Afzal had been working at Dominos from October 2009 until his dismissal in August 2016.  As a non-EU employee he was working under ‘time-limited leave’.  Mr Afzal’s ‘time limited leave’ was set to expire on 12 August 2016 but Mr Afzal’s ability to work in the UK past this date was safe provided that he applied for permanent residence before 12 August 2016.  Dominos repeatedly requested that Mr Afzal made the relevant application and furnished them with evidence of the same so that, come 12 August 2016, Dominos were not illegally employing Mr Afzal and potentially subject to criminal and civil penalties.  On 12 August 2016 Mr Afzal e-mailed Dominos what was purported to be the relevant evidence but Dominos could not open the attachments.  Dominos then dismissed Mr Afzal on the same day with no right to request an appeal.  Mr Afzal subsequently provided the relevant documents but was not reinstated, he was merely offered a role as a ‘new starter’ which would break his continuous employment chain.  Mr Afzal took his claim of unfair dismissal to the employment tribunal (‘ET’)

The ET found in favour of Dominos’ treatment.  The following comments were made by the ET:

  • Dominos' belief, that Mr Afzal’s employment past 12 August 2016 was illegal and could result in civil and criminal penalties, was both reasonable and genuine;
  • As a result of the above Dominos were within reason to dismiss Mr Afzal;
  • Dominos' belief, that Mr Afzal had not made the permanent residency application, was reasonable;
  • Dominos' belief should be considered at the time of dismissal and not revisited as a result of the subsequent provision of evidence by Mr Afzal.

As a result of the above, the ET found that Dominos had acted fairly in dismissing Mr Afzal.

Mr Afzal appealed the ET decision to the EAT.  The EAT were guided by ACAS’s Code of Practice on Disciplinary and Grievance Procedure and the “virtually universal” fact that employment practices almost always grant the ability to appeal dismissals.  The EAT allowed Mr Afzal’s appeal, holding that the ET had erred when deciding that Dominos had acted fairly.  The EAT confirmed that Dominos could have dismissed Mr Afzal and granted him the right to appeal upon.  Upon appeal, if Mr Afzal were to provide the relevant documentation, he could be easily reinstated without the potential for Dominos to be subject to criminal and civil penalties under the Immigration, Asylum and Nationality Act 2006.  The EAT stated that, although tribunals have discretion to rule in favour of employers who have been dismissed without the provision of an appeal, the instances where that would be just are exceptional and only where an appeal could be said to be futile would it be acceptable.

As a result of the above, the EAT allowed Mr Afzal’s appeal and passed the case back to the employment tribunal to decide on the issue of unfair dismissal.

The importance of Afzal cannot be understated.  Although the majority of employers do provide this right of appeal upon dismissals as a result of failure to prove right to work, and this unanimity was even noted by the EAT, there will remain employers who do not do so and it is these employers that will now fall foul of the law.

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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