Appeal right essential where employee dismissed over right to work

Out-Law News | 04 Jul 2018 | 12:26 pm | 3 min. read

An employee who is dismissed for being unable to prove the right to work in the UK ought to be given a right of appeal, the Employment Appeal Tribunal (EAT) has confirmed.

The judgment is a clear reminder of the importance of following fair employment processes, even in immigration compliance cases, according to employment and immigration law expert Louise Shaw of Pinsent Masons, the law firm behind Out-Law.com.

Dominos Pizza delivery franchise East London Pizza dismissed Fahim Afzal in August 2016 in order to avoid civil and criminal penalties under the 2006 Immigration, Asylum and Nationality Act, as it believed that his limited leave to remain in the UK had expired. In its letter to Afzal, the company failed to offer him a right to appeal.

Afzal, a Pakistani national, attained the right to apply for permanent residence in the UK on 15 July 2016. He was entitled to continue to work in the UK provided that he applied before his limited leave expired on 12 August 2016. The day before his leave expired, he sent an email to his employer with two attachments which he said contained evidence of the application. However, his employer was unable to open the attachments.

Afzal brought a claim for unfair dismissal to the employment tribunal. The employment judge found in favour of East London Pizza, ruling that the dismissal was fair as the company genuinely believed that Afzal no longer had the right to work in the UK. The judge found that it was "generally good employment practice" to include a right of appeal against dismissal. However, he agreed with the employer that it was not necessary in this case as there was "nothing to appeal against".

"The test which the employer had to apply is whether before the date of the expiry of the permission it had reasonable grounds for believing that [Afzal] had made a valid application for an extension," the employment tribunal judge said. "So, once the date 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 12 August."

The EAT agreed that East London Pizza had been justified in its "urgent" dismissal of Afzal when it did not have evidence that he was entitled to work in the country. However, he found that the tribunal judge had made an "error of law" when he came to the conclusion that it was unnecessary to give Afzal a right to appeal.

"If an appeal had been offered and [Afzal] had produced evidence which satisfied [East London Pizza] that he was entitled to work, [East London Pizza] could immediately have rescinded the dismissal without fear of prosecution or penalty," the EAT judge said. "There was never a time when [Afzal] was not entitled to work."

However, the EAT judge did not go so far as to rule that Afzal's dismissal had been unfair, as this would "involve some degree of judgment" beyond the role of the EAT. The case will instead return to the employment tribunal for a final ruling.

"The case is helpful in that the tribunal and the EAT recognise that an urgent dismissal may need to be made in the absence of right to work documentation," said employment law expert Louise Shaw of Pinsent Masons. "However, it is also a clear reminder of the importance of following a fair employment process even where immigration compliance is at stake."

"Although the case has been remitted to the tribunal, the EAT makes clear that in its view the employee could have been reinstated on appeal as he had retained the right to work throughout the relevant period. Many companies would offer reinstatement as a matter of good practice in these circumstances, and we normally recommend it. However, the case does not address the thorny issue of back pay, and whether that should be paid for the period that the employee was suspended," she said.

"The case also highlights that employers can make use of the Employer Checking Service where they have evidence of an in-time application having been made. Employers should remember that there is a grace period for current employees who have provided evidence of making a fresh application before their current visa expires. In these circumstances, the employer has 28 days, from the date of expiry of the employee's visa, to obtain a positive verification notice from the Employer Checking Service," she said.

Shaw added that allowing a right of appeal in right to work cases was always good employment relations practice.

"It is the nature of visa applications, and dealings with the Home Office, that the documentation available to the employee may have improved significantly by the time the employer hears the appeal," she said.