Afzal v East London Pizza Ltd t/a Dominos Pizza (Employment Appeal Tribunal)
The EAT has held that a dismissal will generally be unfair where an employee (who qualifies for protection against unfair dismissal) is dismissed without a right of appeal, in circumstances where the employer has a genuine but erroneous belief that an individual's right to work for UK immigration purposes is invalid or has expired.
The relevant employee in this case, a Pakistani national, had worked for his employer under time limited immigration permission. When this expired, he applied for indefinite leave to remain based on his 5 years' residence in the UK. He attempted to email evidence of such application, which would confer an ongoing right to work, to his employer. The employer could not open the attachment and, in the genuine belief that his continued employment would constitute illegal working, effected an urgent dismissal. Upon learning of their mistake, the employer subsequently offered re-engagement as a new starter but without preserving continuity of employment or offering retrospective pay. The employee claimed unfair dismissal.
The Tribunal held that the dismissal was fair on the basis that: (i) the employer's belief that continued employment would be in breach of statute was both reasonable and genuine, and could be justified as "some other substantial reason" for the purposes of the Employment Rights Act 1996; and (ii) whilst it is 'generally good practice' to include a right to appeal in termination correspondence, it was not necessary in this instance since there were no grounds for 'back-calculating or back-filling' a belief it did not have at the point of termination.
The EAT disagreed, noting that the provision of the ability to appeal is 'virtually universal' in modern employment relations practice. Whilst there may be limited cases in which a right of appeal is superfluous, this was not one; instead it would have offered an appropriate forum in which the employer's mistaken belief could have been rectified. On receipt of appropriate evidence, the employee could then have been re-instated with no risk of sanction on the grounds of illegal working. The employee's appeal was permitted and the case remitted to the Tribunal for determination.
This decision does not penalise employers for being cautious and – in view of the significant civil and criminal penalties for employing illegal workers - dismissing those they reasonably believe do not have appropriate immigration permissions. However, it does stress that a fair investigation and process, including a right to appeal, will be vital for establishing a fair dismissal. Employers should also proactively remind immigrants of such application deadlines in order to avoid unnecessary dismissals.