Opinion

Right of appeal is only fair when it comes to dismissal

18th September 2018

Where an individual’s right to work in the UK is called into question, employers can often adopt a knee jerk reaction of dismissing the employee, fearful of the criminal and civil liabilities faced by those employing illegal immigrants. As demonstrated in Afzal v East London Pizza Ltd t/a Dominos pizza however, a proper procedure is of paramount importance whatever the circumstances.

Mr Afzal was a delivery driver working for East London Pizza who was subject to time-limited leave to work within the UK which was due to expire on 12 August 2016. However he had a right to apply for permanent residency and leave to work from July 2016. Provided that he applied by 12 August 2016, he would have been entitled to work in the UK. The employer wrote to Mr Afzal twice stating that he needed to provide his right to work documents prior to 11 August 2016 to avoid any issues.

Mr Afzal duly applied for permanent residency but he did not provide the evidence requested by his employer until 12 August 2016 which he sent by way of an email. Unfortunately the employer could not open the attachment within Mr Afzal’s email and, in fear of employing a worker with no right to work in the UK, dismissed him immediately. No right of appeal was offered. The employee claimed unfair dismissal and the Employment Tribunal rejected the claim on the basis that the company had a right to dismiss as they genuinely believed in the illegality of employing him.

Upon appeal, the EAT found that despite the genuine belief of the company held at the time of dismissal, the employee did have a right to work in the UK. If the employer had allowed an appeal against dismissal, the employee could have put his evidence to the company proving his right to work which would have avoided the issue.

Employer Considerations

This case is a reminder that it is good practice to offer rights of appeal, particularly where an individual has over two years of service and there are question marks over specific issues such as the right to work.

In this instance, a right of appeal would have allowed the employer to review evidence that previously it did not have.

If you need any advice on any business immigration issues (such as the right to work in the UK) please contact our business immigration team (Link to website page)

 

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