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EAT overturns decision to dismiss employee for failure to provide evidence of entitlement to work 

28 June 2018

In Afzal v East London Pizza Ltd t/a Dominos Pizza, the Employment Appeal Tribunal has overturned an employment tribunal’s decision that the dismissal of an employee for failing to provide evidence of his entitlement to work in the UK was fair.

A, who is from Pakistan, married a European national in 2011 and acquired time-limited leave to work in the UK, which expired on 12 August 2016. After that time, he had a right to apply for a document evidencing his right to permanent residence that would continue his right to work. As long as he applied by 12 August, he was entitled to work while the application was being considered.

In both June and July, ELP Ltd reminded A to provide evidence that he had made an in-time application and to do so before 11 August to avoid last minute problems. On 12 August, A sent his employer an e-mail which he said contained evidence of the application. However, ELP Ltd could not open the attachments. Concerned about exposure to criminal or civil penalties should it continue to employ A, ELP Ltd sent him notice of dismissal with no right of appeal, which he received on 15 August. Following his dismissal, when satisfactory evidence of A’s right to work was presented, ELP Ltd offered to re-engage A but as a new starter. This meant his continuous employment with the company would be broken and he would receive no back pay for the period between dismissal and re-engagement. A then made a claim to an employment tribunal of unfair dismissal.

At the first stage in the Employment Tribunal, the employment judge found that ELP Ltd genuinely believed that A’s employment was prohibited by statute, which amounted to ‘some other substantial reason’ for dismissal. Furthermore, he considered that it was both reasonable for ELP Ltd to hold this belief (given the lack of evidence in this regard) and for it to act decisively on 12 August for fear of exposure to criminal and civil penalties. The case therefore hinged on the question of the right to appeal the dismissal.

The judge’s view at the first stage was that whilst it is generally good practice to include a right of appeal, there was in this case ‘nothing to appeal against’: the test to be applied was whether ELP Ltd had reasonable grounds for believing that A had made a valid application for an extension before his work permit expired. There was no basis for the employer to ‘back-calculate or back-fill’ a belief it did not have on 12 August. In those circumstances, the judge could not conclude that it was unfair to fail to offer a right of appeal in the dismissal letter. He therefore dismissed A’s unfair dismissal claim.

Upon appeal to the EAT, His Honour Judge David Richardson observed that in modern employment practice the provision of an appeal against dismissal is virtually universal and is recommended by the Acas Code of Practice on Disciplinary and Grievance Procedures. Nevertheless, there will be exceptional circumstances where an employment tribunal can conclude that a dismissal was fair despite the absence of an appeal.

In this instance however, the employment judge was wrong to conclude that there was ‘nothing to appeal against’. ELP Ltd’s genuine belief that A’s employment was illegal justified his urgent dismissal but turned out to be wrong. If an appeal had been offered, there were various ways in which A could have established his right to work – he could have provided documents demonstrating the in-time application, ELP Ltd might have accepted the word of a solicitor, or ELP Ltd might have obtained the relevant number from A and then made its own enquiry of the Employment Checking Service. Had A’s right to work been established, there was no reason why A should not have been reinstated. ELP Ltd would not be committing a criminal offence or incurring liability to a penalty by doing so. HHJ David Richardson therefore allowed A’s appeal remitted the matter to the employment judge.

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