Evidence of right to work could have been established during appeal process

Afzal v East London Pizza Ltd, t/a Dominos Pizza

Where an employee was dismissed because the employer had a reasonable belief that they were not entitled to work in the UK, the employer should offer an appeal to allow the employee the chance to prove that at all relevant times they in fact had the right to work in the UK.

Background

Mr Afzal, a Pakistani, was a competent and well-regarded employee who’d been working for his employer since 2009. He acquired time-limited leave to work in the UK, which expired on 12 August 2016. After that date, having been a permanent resident for five years, he had a right to apply for a document evidencing his right to permanent residence that would continue his right to work. He could not apply before 15 July. So long as he applied by the expiry of the current leave, he was entitled to work while it was considered. HR wrote to Mr Afzal on 3 June 2016 and 15 July 2016 reminding him that he should present evidence to them that he had made an in-time application and should do so before 11 August to avoid last-minute problems. No evidence was received. Mr Afzal did in fact make an in-time application, but very late in the day. He didn’t send any evidence about it to his employer until an attempt at 4.28pm on 12 August. At that time, he sent his line manager an email with two attachments which (he said) contained evidence of the application. His line manager couldn’t open the attachments to the email. He told Mr Afzal about this and thought Mr Afzal would send them in a form he could read.

As it turned out, Mr Afzal’s employer didn’t receive any evidence that an in-time application had been made before the expiry of 12 August. Concerned to avoid any risk to it from continuing to employ Mr Afzal (by virtue of the provisions of the Immigration, Asylum and Nationality Act 2006), HR posted notice of dismissal to him on 12 August. The reason for dismissal was ‘some other substantial reason’, i.e. the employer’s belief that Mr Afzal’s continued employment was prohibited by law. No procedure was followed before dismissing Mr Afzal and no right of appeal was afforded to him. Mr Afzal brought an unfair dismissal claim.

The tribunal dismissed his claim, holding that the employer had acted reasonably for fear of exposure to criminal and civil penalties, especially given the advance warning which had been given to Mr Afzal. As to the failure to provide an appeal, the tribunal held that there was nothing to appeal against - the test for the employer is whether before the date of the expiry of the permission it had reasonable grounds for believing that Mr Afzal had made a valid application for an extension. So, once the date had passed, there was no basis for the employer to back calculate or back-fill a belief it did not have on 12 August. Mr Afzal appealed.

EAT decision

The EAT allowed his appeal. The sole issue was whether the tribunal had made a mistake when it concluded that Mr Afzal’s dismissal was fair notwithstanding that his employer offered no right of appeal. The EAT held that it had - the whole process, including an appeal, was relevant to the question of fairness. The employer had a genuine belief that Mr Afzal’s employment was prohibited by statute. But this belief was wrong, and his employer was always entitled to employ him. If an appeal had been offered and Mr Afzal had produced evidence which satisfied his employer that he was entitled to work, it could immediately have rescinded the dismissal without fear of prosecution or penalty. There was never a time when Mr Afzal was not entitled to work. The key issue on appeal would therefore have been whether Mr Afzal actually had an entitlement at all material times to work properly backed by evidence. If he had, there was no reason why he should not have been reinstated. An employer cannot be prosecuted or made subject to a penalty if the relevant employee was in fact entitled to work. If, in the course of an appeal process, the employer received evidence of an in-time application which extended the right to work, it was entitled to reinstate the employee. It would not be committing a criminal offence or incurring liability to a penalty by doing so.

The issue was sent back to the original tribunal to decide on the fairness issue.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0265_17_1304.html

Comment

The best comment is perhaps the last paragraph from the judge’s decision:

'In my judgment, it is good employment relations practice for an employer in circumstances of this kind to offer an appeal. Experience shows that it is an anxious time both for employer and employee when a limited leave to remain or work expires, and a further application has to be made. Difficult technical questions may arise; relevant documents may be difficult to find; and I might add that experience shows that the Employee Checking Service is not always fully informed or up to date. Affording an appeal gives an opportunity for matters of this kind to be considered again rather more calmly than can be done as the time limit expires. There will be cases, and in my experience they are not particularly uncommon, where an employer wrongly believes that an employee does not have a continuing right to work. The appeal process affords an opportunity for this kind of case, which can result in real feelings of injustice, to be looked at again’.