Mr Afzal was a trainee manager for a fast food company and had the right to work in the UK but had failed to produce evidence before the end of his limited leave to remain (which gave him the right to work) in August 2016. On the day that his leave would have expired, Mr Afzal sent an email to his employer with evidence of his application to the Home Office. That application automatically extended his right to work. The attachments with the evidence could not be opened and the Respondent dismissed to avoid civil and criminal penalties under the Immigration, Asylum and Nationality Act 2006. In the dismissal letter, East London Pizza failed to offer the right to an appeal. They also argued in the tribunal that there was “nothing to appeal against”; new evidence would not have undermined the reasonableness of the Respondent’s belief at the time of dismissal.
The Employment Appeal Tribunal rejected that argument which had succeeded at Tribunal. The Judge said that while the employer was justified in urgently dismissing the employee when it did, since it had a genuine belief that his employment was by then illegal, if evidence had been produced upon appeal, that the employee was entitled to work at all material times, the employer could immediately have rescinded the dismissal without fear of prosecution or penalty. He decided that production of the evidence of right to work could have happened during an appeal process and the contract could have been revived “without fear of prosecution or penalty”. Affording an appeal allows matters of this kind to be considered again ‘rather more calmly than can be done as the time limit expires’ holding that the whole of the process, including an appeal, was relevant to the question of fairness.
Peter Stanway, our BackupHR™ legal expert comments:
Allowing a right of appeal in right to work cases is always good employment relations practice, even where immigration compliance is at stake. If an appeal had been offered, there were various ways in which he could have established his right to work. He could have provided documents demonstrating the in-time application. They might have obtained the relevant number from him and then made its own enquiry of the Employment Checking Service. Had his right to work been established, there was no reason why he should not have been reinstated. As the judge said “The appeal process affords an opportunity for this kind of case, which can result in real feelings of injustice, to be looked at again.”
- Employees should always be notified of the right of appeal when they are informed of a disciplinary or dismissal decision, no matter how long or short their length of service is.
- The appeal should be heard irrespective of the seriousness of the offence or the circumstances.
- The Employee has the right to be accompanied at any appeal with either a (current or former) work colleague, or, accredited trade union representative.
- Appeals should be dealt with as speedily as is practicable and wherever possible, heard by a manager who is more senior than the person who took the disciplinary/dismissal action.
- The employee, or their representative, should have an opportunity to comment on any new evidence arising during the appeal before any decision is taken. They can also comment on whether the original disciplinary/dismissal process and decision, including any investigation, was fair and proportionate.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.
