Padma Tadi discusses the recent case of Afzal v East London Pizza Ltd t/a Dominos Pizza and explains what steps you should take to stay on the right side of the law.
It is illegal to engage, or to continue to employ someone, who doesn’t have the right to work in the UK. Employers can be prosecuted and be fined up to £20,000 per worker for doing so. However, if you dismiss someone without following the correct procedure (including giving them the right of appeal), their dismissal is likely to be unfair.
It is unlawful to employ someone who doesn’t have the right to reside and work in the UK, or who is working in breach of their conditions of stay. All employers have a duty to prevent illegal working. To comply with this obligation, they must:
- Carry out ‘right to work’ checks on all prospective employees before employment starts
- Conduct follow up checks on all employees who have a limited permission to live and work in the UK
- Keep records of all the checks carried out
- Not employ someone it knows or has reasonable cause to believe is an illegal worker.
Mr Afzal is from Pakistan and is married to a European national. He started working for Dominos in October 2009 under a time-limited right to work that expired on 12 August 2016. As he had been living in the UK for over five years, he had the right to apply for permanent residence. However, in order to continue to work lawfully, he had to apply before his right to work expired.
Dominos contacted Mr Afzal on 3 June 2016 and again on 15 July 2016 and asked him for proof that he could continue to work lawfully in the UK. Dominos reminded him that he had to apply for permanent residency before 11 August 2016 to avoid last-minute problems. On 12 August 2016, Mr Afzal sent an email with two attachments that, he said, contained evidence of his application. Dominos could not open the attachments and it dismissed him. It did not follow any procedure before dismissing him, based on the erroneous belief that it was illegal to continue employing him. It did not give Mr Afzal the right to appeal.
He alleged unfair dismissal.
The Employment Appeal Tribunal found that Mr Afzal’s dismissal was likely to be unfair and it remitted the case back to the Employment Tribunal to determine this on the evidence. It found that Mr Afzal had made a valid in time application and, had Dominos properly reviewed the matter, it could have continued to employ him without risk of prosecution or penalty. Plus, if Mr Afzal had been given the right to appeal, he could have provided the evidence Dominos needed and it would have had the option to reinstate him.
Tips for employers whose staff have a time limited right to work in the UK
- Include wording in your contracts of employment that imposes a duty on employees to produce evidence of their right to work in the UK on demand and make it clear that failure to do so may be classed as gross misconduct. This will then give you the option of dismissing without notice if the employee can’t produce documents within a reasonable period of time.
- Record the expiry date of the right to work and make a diary note to contact the employee at least eight weeks before this.
- At least eight weeks before expiry, contact the employee and remind them that you will not be able to continue to employ them without evidence they have a continuing right to work or have made an in time application.
- If you do not receive evidence within four weeks of the expiry of their right to work, write to the employee and warn them that they might be dismissed unless they provide this information.
- If the employee has not given you any evidence by the date their right to work expires, meet with them (or have a conversation over the telephone if that is not possible) and suspend them without pay. Give them 24 hours to provide the relevant evidence.
- If the employee suggests that they have made an application but, for whatever reason, can’t provide you with the evidence of their application, you may use the Government’s online checking service to check if the employee has the right to work in the UK: https://www.gov.uk/check-job-applicant-right-to-work However, bear in mind that this is not always up to date. We recommend that you do not take any action until this has been done.
- If the employee does not provide evidence by that deadline (and you do not get a positive verification after using the online check), you should follow a proper disciplinary process and dismiss the employee for some other substantial reason (SOSR) and misconduct (providing your contracts contain the wording as set out above and you have asked for the information). Carefully word your dismissal letter – it should detail your investigations and the factors you have considered before you reached the decision to dismiss. You should also advise the employee that they can appeal, if they have evidence of their continued right to work.
- If the employee appeals and provides valid evidence of their right to work, it is sensible to consider reinstating them to their previous role. If you don’t wish to do so, you will need a good reason. This will help you to minimise the risk of a successful claim.
- If the employee provides evidence of their right to work (or they pass on the online right to work check), you can continue to employ them. You should reimburse the employee for any time they were suspended without pay.
- Remember: if you don’t follow a proper and fair procedure, you will expose your business to a claim for unfair dismissal (employees need two years’ service to qualify) but also race discrimination, which is not subject to any minimum period of work. Take advice if you are unsure.