EAT overturns an Employment Tribunals decision that the dismissal of an employee was fair as he failed to provide evidence of his entitlement to work in the UK

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

In 2011, the employee married a EU national and obtained a time-limited right to work in the UK. This right expired on 12th August 2016. After that he had the right to apply for permanent residency, which allowed him to continue working in the UK

The employee sent his manager an e-mail which he said contained evidence of the application of permanent residency. However, the employer could not open the email. Due to concerns over exposure and possible criminal and civil penalties, the employer dismissed the employee without the right to appeal. When evidence came to light that the employee had the right to work, the employer offered to re-engage the employee on a brand new contract. This would mean that that the employee’s continuous service would be broken and he was unable to receive back pay. The employee then made a claim for unfair dismissal.

The Employment Tribunal found that the employee’s employment was prohibited by statute, which amounted to ‘some other substantial reason’ for dismissal. With regards to the right to appeal, the judge’s view was that in this case there was nothing to appeal against.

The employee appealed to the EAT who concluded that the provision of an appeal against dismissal is recommended by the Acas Code of Practice on Disciplinary and Grievance Procedures and that there are only exceptional circumstances where a tribunal can conclude that a dismissal was fair despite the absence of an appeal.

The judge held that in this case the employment tribunals ruling, that there was nothing to appeal against, was wrong and therefore his dismissal was unfair. If an appeal had been offered, there were various ways in which the employee could have established his right to work.

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