Right to work: Dismissal without an Appeal hearing

The EAT ruled in Afzal v East London Pizza Ltd that it was unfair to refuse to give an employee a right of appeal against the decision to dismiss him where his employer mistakenly concluded that the employee had no right to work in the UK.

The Claimant worked as an Assistant Manager for a fast-food company (“the Respondent”). The Claimant was a well-regarded employee and had risen up the ranks, having started with the Respondent as a delivery driver.

The Claimant was from Pakistan and had lived in the UK since 2009. The Claimant married a European national in 2011 and acquired time-limited leave to work in the UK. His right to work document was due to expire on 12 August 2016. The Respondent was well versed in dealing with immigration matters concerning its employees. The Respondent wrote to the Claimant on a couple of occasions to remind him of his visa expiry and to provide the Respondent with his new right to work documentation before 11 August 2016 to avoid any last-minute issues.

The Claimant had in fact applied in time for an extension to his right to work in the UK but he did not email the evidence of this application to the Respondent until late afternoon on 12 August 2016 and the Respondent could not open the attached evidence, which it did relay to the Claimant. The Respondent was concerned it may be employing the Claimant illegally and so dismissed the Claimant. The Respondent did not follow any dismissal procedure and did not give the Claimant any right of appeal. The Respondent’s reasoning being they had no time to follow a procedure and an appeal was futile if the Claimant didn’t have the right to work in the UK.

The Claimant brought proceedings in the Employment Tribunal for unfair dismissal. His claim was rejected by the Tribunal who held the Respondent was right to dismiss the Claimant as the Respondent had a genuine belief that continuing to employ the Claimant was illegal as they had not received proof of the Claimant’s continued right to work in the UK and in not offering an appeal, this was part of that belief, so making the dismissal fair.

The Claimant appealed to the EAT who allowed the appeal on the point concerning the appeal hearing, holding that despite the Respondent’s genuine belief and concern that the Claimant did not have a right to work in the UK, the Claimant did in fact hold the right to work in the UK. Had an appeal been carried out, the Claimant could have presented this evidence and the Claimant’s employment could have therefore resumed without the Respondent being concerned they were employing the Claimant illegally.

The EAT did not make a finding on whether the dismissal was unfair but instead remitted the case back to the same Judge at the Tribunal.

In the words of Judge Richardson in the EAT case; “it is good employment relations practice for an employer in circumstances of this kind to offer an appeal. Experience shows this is an anxious time for both employer and employee when a limited leave to remain or work expires and a further application has to be made... There will be cases...Where an employer wrongly believes an employee does not have a continuing right to work. The appeal process affords an opportunity for this kind of case, which can result in real feelings of injustice, to be looked at again”.