Dismissal for Failure to Prove Right to Work

In the case Afzal v East London Pizza Ltd t/a Domino’s pizza, the Employment Appeal Tribunal (“EAT”) examined whether or not an employee who had been dismissed for failure to provide evidence of his entitlement to work in the UK was entitled to a right of appeal against his dismissal as part of a fair process.

In this case, Mr Afzal, a Pakistani national, was employed by the Respondent as Acting Assistant Manager. Having married a European national, he acquired leave to work in the UK until 12 August 2016. After that point, he could apply for a document evidencing his right to permanent residence that would continue his right to work. He needed to apply by 12 August and if he did so, he was entitled to work whilst the application was being considered. The Respondent reminded Mr Afzal on a number of occasions prior to 12 August 2016 that he needed to provide evidence that he had made the relevant application. It was not until 12 August 2016 that Mr Afzal sent the Respondent an email purporting to contain evidence of his application. The Respondent was unable to open the attachment and therefore sent Mr Afzal a notice of dismissal with no right of appeal, which was received by Mr Afzal on 15 August 2016. Mr Afzal subsequently provided that the Respondent with satisfactory evidence of his right to work and the Respondent at that point, offered to re-engage him but his continuity of employment would be broken and he would not be entitled to back pay between his dismissal and re-engagement.

Mr Afzal complained to an Employment Tribunal (“ET”) that he had been unfairly dismissed by the Respondent.

The ET found that Mr Afzal’s dismissal was for “some other substantial reason” (“SOSR”) and considered that it was reasonable for the Respondent to have acted decisively on 12 August 2016 for fear of exposure to criminal and civil penalties. The case therefore hinged on the question of Mr Afzal not having been given the right to appeal against his dismissal by the Respondent. Whilst the ET accepted that it was generally good practice to offer a right of appeal, it found that in this case, there was nothing to appeal against. In these circumstances, the ET concluded that it was not unfair to have failed to offer a right of appeal to Mr Afzal against his dismissal. Mr Afzal’s unfair dismissal claim was therefore dismissed.

The EAT disagreed. It concluded that the provision of an appeal against dismissal is “virtually universal” and is recommended by the ACAS Code. It did accept that there would be cases where an ET could conclude that a dismissal was fair despite the absence of an appeal but these cases would be exceptional and will be where an appeal would have been futile and could not have altered the decision to dismiss. The EAT concluded that in this case, the ET was wrong to conclude that there was nothing to appeal against. If an appeal had been offered, there were various ways in which Mr Afzel could have established his right to work for example by providing documentation demonstrating his in-time application or the Respondent might have accepted the word of a solicitor. Had Mr Afzal’s right to work been established, there was no reason why he should not have been reinstated. The EAT therefore allowed Mr Afzal’s appeal. The matter was remitted to the ET.

This case demonstrates how important it is for an employer to follow a fair process, including a right of appeal, in dismissal cases.