This case should be of interest to employees and employers alike and not just because of the pizza reference!
In the case of Afzal v East London Pizza Limited t/a Dominos Pizza , the Employment Appeal Tribunal (‘EAT’) confirmed that the employee should have been given the right to appeal against his dismissal resulting from a failure to prove his right to work in the UK.
The employer in the case (referred to as Dominos for ease) dismissed Mr Afzal in the belief that they may be exposed to criminal and civil penalties if they continued to employ him. However, the EAT's view was that he still should have been offered an appeal and that he could have been reinstated if sufficient proof of the right to work had been provided at the appeal stage.
What's the background then?
In short, Mr Afzal had been employed by Dominos since October 2009 working in different job roles. He had been given ‘time-limited leave’ to work in the UK, having married an EU national in 2011. His leave expired on 12 August 2016, but he was allowed to keep working in the UK after this date provided that he applied for documentation that evidenced his right to permanent residence before 12 August 2016.
To be fair to Dominos, it had reminded Mr Afzal that he needed to provide them with evidence of his application and they told him that this should be done by 11 August 2016 to avoid last minute problems. Unfortunately, it was not provided by that date. Whilst the employee did email the evidence to Dominos late afternoon on 12 August, they could not open the attachments to check this. Dominos dismissed him without giving him the right to appeal against the decision.
Following this, we understand that Mr Afzal produced the relevant documentation and Dominos offered to re-employ him as a new starter.
Mr Afzal brought a claim of unfair dismissal. An employment tribunal found that Dominos held a genuine, reasonable belief that continued employment was prohibited by law. When considering whether they were right to not offer him an appeal, teh tribunal found that the question was whether Dominos had “reasonable grounds” for their belief that Mr Afzal had not made the application for permanent residence before his work permit expired. As this belief was held when they dismissed, the tribunal did not consider that it was unfair to bar an appeal and considered that there was nothing to appeal against.
What did the EAT say?
The EAT disagreed on appeal - noting that providing an appeal in employment practices is “virtually universal”. The EAT held that although tribunals can find on the facts that a dismissal is indeed fair without an appeal being needed, this could only be found in exceptional circumstances where such an appeal would be futile.
The EAT held that the ET was wrong to find that there was nothing to appeal against or that an appeal would have been futile. Mr Afzal had the right to work throughout and it was the evidence to show that right to work which was not provided in time. The evidence could of course have been provided (and considered) on appeal and Mr Afzal could have been reinstated.
This is a reminder of the importance of offering appeals to dismissals, even in the tricky cases of right to work dismissals. As you can see, there is limited exception to the normal requirement of offering an appeal and it is likely to be construed narrowly.
If in doubt, one should be offered!