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02 July 2018

EAT overturns ET decision to deny appeal to employee dismissed for failing to prove right to work in the UK: Afzal v East London Pizza Ltd t/a Dominos Pizza: UKEAT/0265/17

3 mins

The facts

Afzal, from Pakistan, was employed by East London Pizza Ltd (ELP Ltd) as a delivery driver in October 2009 and progressed to assistant manager and a manager in training. In 2011 he acquired time-limited leave to work in the UK following his marriage to a European National. This expired on 12 August 2016 but he had the right to apply for permanent residence which would continue his right to work.  Under immigration rules a person is entitled to work throughout the period in which an in-time application is being considered. This meant that as long as Afzal made his application by 12 August 2016 and notified his employer of it, he would be permitted to continue working.

On 12 August 2016 Afzal sent ELP Ltd an email containing attachments which he claimed contained evidence of his application. It was not in a form that ELP Ltd could read and Afzal was notified of this. As ELP Ltd was not in receipt of evidence of Afzal’s right to work by the end of that day, they sent him a notice of dismissal letter with no right of appeal as there was “nothing to appeal against”. When the evidence was subsequently provided ELP Ltd offered re-engagement but as a new starter meaning that Afzal’s continuity of employment would broken and he would not be entitled to lost wages from the date of dismissal. Afzal brought a claim for unfair dismissal. 

Employment Tribunal decision

The Employment Judge stated that the reason for dismissal was for “some other substantial reason”, namely that ELP Ltd believed that Afzal’s employment was prohibited by statute. The Judge considered it fair for ELP Ltd to have held this view and taken the action that it did. As for the appeal, the Judge agreed that there was “nothing to appeal against”. He held that once the date (12 August 2016) had passed, the employer could not “back calculate or back-fill a belief it did not have on 12 August”- the belief that a valid application for an extension had been made. 

Employment Appeal Tribunal decision

The EAT Judge agreed that ELP Ltd was justified in dismissing Afzal on 12 August but held that if an appeal had been offered and Afzal had produced satisfactory evidence of his entitlement to work ELP Ltd could “immediately have rescinded the dismissal without fear of prosecution or penalty”. The Judge recognised that on appeal the consideration would have been whether Afzal actually had an entitlement to work. The Judge did not accept that an appeal was futile and remitted the case back to the Employment Tribunal.

The EAT Judge described it as “good employment relations practice” for an employer in such circumstances to offer an appeal. He recognised that the Employee Checking Service is not always up to date and having an appeal gives the opportunity for cases to be considered “more calmly”.

The decision highlights the importance of employers implementing fair procedures when the need to dismiss employees over immigration status does arise. As the EAT judge recognised, this would mitigate the harm caused when the employer wrongly believes that the employee does not have the continuing right to work.

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