The EAT has reminded employers of the importance of offering an appeal against dismissal in cases where the employer believes the employee does not have the right to work.
Mr F Azal v East London Pizza Limited (t/a Dominos) UKEAT/0265/17/DA
Mr Afzal was a Pakistani national, with the right to work in the UK as the spouse of an EU national. His five year residence permit was expiring and he applied in time for permanent residence. His employer, Dominos, asked him to provide evidence of his ongoing right to work. When he failed to do so, they dismissed him. No right of appeal was offered. Mr Afzal brought a claim of unfair dismissal.
Before the Employment Tribunal Dominos argued that Mr Afzal had been fairly dismissed. The Judge found they had a reasonable (albeit mistaken) belief that Mr Afzal did not have the right to work. He went on to hold that the dismissal was fair.
Mr Afzal complained that he should have been offered a right of appeal. If this had been properly conducted he would have been able to provide the necessary evidence of his right to work and would have been reinstated. However the ET Judge felt there was nothing to appeal against, as the issue was not whether Mr Afzal had the right to work but rather whether the employer’s belief was reasonable.
Mr Afzal appealed to the Employment Appeal Tribunal.
The EAT noted that Mr Afzal did have the right to work and that this could easily have been resolved through an appeal, with Mr Afzal being reinstated. His Honour Judge David Richardson noted:
“In my judgement, it is good employment relations practice for an employer in circumstances of this kind to offer an appeal. Experience shows that it is an anxious time both for employer and employee when a limited leave to remain or work expires and a further application has to be made. Difficult technical questions may arise; relevant documents may be difficult to find; and I might add that experience shows that the Employee Checking Service is not always fully informed or up to date. Affording an appeal gives an opportunity for matters of this kind to be considered again rather more calmly than can be done as the time limit expires. There will be cases, and in my experience they are not particularly uncommon, where an employer wrongly believes that 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.”
The Judge resisted the temptation to substitute the Employment Tribunal decision with a finding that the dismissal was unfair and remitted the case back to the Tribunal to be reconsidered.
Where an employer has concerns about an employee’s right to work, there are two potentially fair reasons for dismissal: illegality; or some other substantial fair reason, namely the employer’s belief on reasonable grounds that the employee does not have the right to work. It is always safer to rely on the latter, in case it subsequently emerges (as in this case) that the employee did have the right to work.
To have a fair dismissal for some other substantial reason, it is important that the employer carries out a reasonable amount of investigation to establish its reasonable belief and that the employee is offered a right of appeal.