In Afzal v East London Pizza Ltd t/a Dominos Pizza, the Employment Appeal Tribunal (EAT) considered a case where a Claimant had been dismissed and not offered a right of appeal.
Afzal v East London Pizza Ltd t/a Dominos Pizza
Case Summary
The Claimant had the right to work in the UK but had failed to produce evidence before the end of his limited leave to remain (which gave him the right to work) in August 2016. On the day that his leave would have expired, Mr Afzal sent an email to his employer with evidence of his application to the Home Office. That application automatically extended his right to work. The attachments with the evidence could not be opened and the Respondent was dismissed to avoid civil and criminal penalties under the Immigration, Asylum and Nationality Act 2006.
In the dismissal letter, East London Pizza failed to offer the right to an appeal. They also argued in the tribunal that there was “nothing to appeal against”: new evidence would not have undermined the reasonableness of the Respondent’s belief at the time of dismissal.
The EAT rejected that argument, holding that the whole of the process, including an appeal, was relevant to the question of fairness. It was held that production of the evidence of right to work “could have happened during an appeal process in various ways” and the contract could have been revived “without fear of prosecution or penalty”.
Comment
Many employers would not necessarily follow a full process when dealing with terminations for not having the right to work in the UK. This case makes the point that in circumstances where the employee is legally entitled to work (regardless of what the employer believes) a full process is likely to have been required in order for any dismissal to be fair.
We would advise all employer clients to consider, including the right of appeal against all dismissals and certainly to entertain any appeals received (regardless of whether the right to appeal was offered), to avoid any procedural unfairness regardless of the grounds for dismissal.
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