The right to Appeal against dismissal

It is or should be a worry for any business when employing an individual who may not have the right to work in the UK, especially when you understand what is at stake. There has been increased measures introduced over the years to stop illegal working, which means employers in breach of their obligations under the legislation could face large civil penalties of up to £20,000 for each individual working and they will also be committing a criminal offence(1). All this was tested in a recent Employment Appeal Tribunal(2) (EAT) case Afzal v East London Pizza Limited t/a Dominos Pizza(3) and the individual’s right to appeal.

The Mr Afzal had been employed by London Pizza Limited t/a Dominos Pizza from 27th October 2009 starting as a delivery driver and working his way up with the Company to acting assistant manager and a manager in training. He was seen as a very good employee with a future with the Company.

Mr Afzal is from Pakistan and was married to a European national and as a result he acquired time-limited leave to work in the UK, which expired on 12th August 2016. After that time, 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 for this document before 15th July, so long as he applied by the expiry of the current leave, he was entitled to work while it was being considered.

The Employer was used to to dealing with immigration issues and these were dealt with by a member of their HR team. One of the HR team wrote to the Mr Afzal on 3rd June 2016 and again on the15th July 2016 reminding him that he needed to provide evidence that he had made an in-time application and this had to be done before 11th August to avoid last minute problems. Mr Afzal sent an email to the HR member but they were unable to open the attachments which meant at the time of their decision no evidence was received and as a result the Company subsequently dismissed Mr Afzal on the 12th August 2016, without the right of appeal.

At the employment tribunal(4) (ET) it was accepted that the dismissal was fair as the employer had a reasonable belief at the time of the dismissal that Mr Afzal did not have the right to continue to work legally. The Judge at the ET also stated that it is generally good employment practice to include a right of appeal and in this case the lack of a right to appeal does not make the process unfair because, there was 'nothing to appeal against'.

Mr Afzal appealed to the Employment Appeal Tribunal and they agreed with him on the point of ‘the right of an appeal’ and whether a dismissal is unfair or no it has to be judged on the whole process, including any right of appeal. It was stated that if Mr Afzal had had an appeal he could have provided the right documentation and information needed by the Company, which would have shown that he did have the right to work in the UK.

The appeal process, for any Company, is there to remedy any mistakes made during the dismissal process and as the Judge in both the ET and EAT stated; it is good employment relations practice for an employer in circumstances of this kind to offer an appeal.

Also in disciplinary cases the ACAS Code of Practice (5) issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992(6) says that an opportunity to appeal should be given.

The lesson learned here is, the dismissal may often be the right thing to do based on all the evidence at that time and having an appeal enables the employer to take stock, relook at all the evidence with a fresh set of eyes and even take advice on the merits of their decision, especially now with no tribunal fees cases certainly on the increase.(7).

References

1. Penalties for employing illegal workers [Internet]. GOV.UK. [cited 2018 Jul 17]. Available from: https://www.gov.uk/penalties-for-employing-illegal-workers

2. Employment Appeal Tribunal - GOV.UK [Internet]. Available from: https://www.gov.uk/courts-tribunals/employment-appeal-tribunal

3. Afzal v East London Pizza Ltd T/A Dominos Pizza UKEAT/0265/17/DA [Internet]. [cited 2018 Jul 17]. Available from: https://www.employmentcasesupdate.co.uk/site.aspx?i=ed37223

4. Employment Tribunal - GOV.UK [Internet]. Available from: https://www.gov.uk/courts-tribunals/employment-tribunal

5. ACAS Code of Practice [Internet]. Castle Associates Ltd. 2017 [cited 2018 Jul 17]. Available from: https://castleassociates.org.uk/support-centre/acas-code-practice

6. Participation E. Trade Union and Labour Relations (Consolidation) Act 1992 [Internet]. [cited 2018 Jul 17]. Available from: https://www.legislation.gov.uk/ukpga/1992/52/contents

7. Employment Tribunal Claims are on the increase [Internet]. Castle Associates Ltd. 2018 [cited 2018 Jul 17]. Available from: https://castleassociates.org.uk/latest-news/employment-tribunal-claims-are-on-the-increase

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