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Take this 'pizza' of advice on appeals6th July 2018 Employment
In Afzal v East London Pizza Ltd (t/a Dominos Pizza), the Employment Appeal Tribunal has overturned a decision that dismissing an employee without appeal for failing to produce evidence of right to work was not unfair dismissal.
The Claimant was employed by the Respondent from 27 October 2009 as a delivery driver, eventually working his way up to acting assistant manager. Originally from Pakistan, the Claimant acquired time-limited leave to work in the UK, which expired on 12 August 2016.
The Respondent informed the Claimant that it needed to receive evidence that the Claimant had applied for permanent residence, which would extend his right to work until a decision was made, by 11 August 2016, and sent several reminders of this as the date approached. However, the Claimant made his application close to the deadline and as such sent the evidence by email on 12 August, at which time the Respondent could not open the email attachments sent. The Claimant was informed of this, however no further evidence was sent and so the Respondent dismissed the Claimant effective 15 August 2016. Crucially, no right of appeal was given to the Claimant in the dismissal letter.
Both parties accepted that the Claimant did in fact make an in-time application for permanent right to remain, and therefore did have the right to work in the UK on 12 August. The Respondent's decision to dismiss was based on the fact that the Claimant had failed to evidence this, and therefore they genuinely believed that continuing to employ him would contravene the Immigration, Asylum and Nationality Act 2006.
The initial Employment Tribunal decision was that the Claimant's dismissal was not unfair. The Employment Judge found that it was reasonable for the Respondent to believe that continuing to employ the Claimant was prohibited by law, and that it was reasonable for the Respondent to act decisively on 12 August for fear of exposure to criminal and civil penalties. The question then was whether the lack of right to appeal made the dismissal unfair.
The Employment Judge found that there was no reason for the employer to offer an appeal, despite it being good employment practice; he concluded that, ' once the [12 August] had passed, there was no basis for the employer to, as it were, back calculate or back-fill a belief it did not have on [that date]'.
The Employment Appeal Tribunal took a different view. It found that an appeal would have offered the Claimant a chance to produce evidence of his right to work in a format that the Respondent could work with, or for the Respondent to contact the Claimant's solicitor and ascertain that an application had indeed been made (which it had already done in the case of another employee in a similar situation). As the Claimant had the right to work at all times, the appeal would almost certainly have seen him reinstated.
As a result, the EAT overturned the decision and remitted the case back to the ET for review.
This decision has a number of implications for employers where right to work questions are concerned. One of the concerns will be whether the requirement to offer an appeal will open them up to possible penalties for continuing to employ workers after their right to work in the UK may have expired.
The point was not dealt with at length in this case, with the Appeals Judge saying only that it was 'in my judgment clear that an employer cannot be prosecuted or made subject to a penalty if the relevant employee was in fact entitled to work'. Our view is that once an employee is dismissed, he/she no longer is in employment irrespective if there is any appeal ongoing or not. As such, employers should still continue to offer a right to appeal the decision to dismiss to avoid liability in an unfair dismissal claim.
The case also highlights a practical viewpoint for employers. On establishing that the Claimant had lodged an in time application and therefore, could legally work in the UK whilst this was under consideration, why not simply reinstate him? This would have avoided the issue of appeal altogether and offers a practical way to address a situation like this before unnecessary legal costs are incurred.