No right of appeal made dismissal unfair
An employee who failed to provide evidence of his continued right to work in the UK had been unfairly dismissed as he had not been afforded a right of appeal.
In Afzal v East London Pizza Ltd t/a Dominos Pizza, Mr Afzal’s time limited leave to work in the UK was due to expire on 12 August 2016. As long as he applied for a document evidencing his right to permanent residence (which continued his right to work) by 12 August, he could continue working whilst his application was considered.
Mr Afzal left it very late but did make an in-time application. He emailed his employer the evidence at 4.28pm on 12 August but it could not open the attachments. Although it told him this, he did not re-send the evidence. Concerned that it could face criminal penalties for employing someone with no right to work, his employer dismissed him without following any procedure and without affording him a right of appeal.
He claimed unfair dismissal. The employment judge ruled that he had been dismissed for some other substantial reason (his employer’s genuine belief that his continued employment was prohibited by statute) and that his dismissal was fair. The employer’s belief was reasonable and it had been reasonable for it to act decisively on 12 August, given its concern about exposure to criminal and civil penalties. Whilst it is generally good practice to allow a right of appeal, in this case there was nothing to appeal against, as new evidence would not have undermined the reasonableness of the employer’s belief at the time of dismissal.
Mr Afzal appealed to the Employment Appeal Tribunal (EAT).
The EAT upheld his appeal. When judging whether a dismissal is unfair, it is necessary to look at the whole process, including any right of appeal. His employer was justified in dismissing Mr Afzal urgently on 12 August because it did not have evidence of his right to work and so it genuinely believed that his employment was prohibited by statute. However, that belief was wrong and if it had afforded him an appeal, he could have produced evidence of his right to work or his employer could have made its own enquiry of the Employer Checking Service. His employer could then have revoked the dismissal without fear of prosecution or penalty.
The Acas Code of Practice on Disciplinary and Grievance Procedures makes it clear that employees dismissed for misconduct should be afforded a right of appeal. The Acas Code did not apply in this case as the employee was not dismissed for misconduct. However, employers should normally offer a right of appeal as part of a fair dismissal process.
The EAT recognised that there may be exceptional cases where an employer that does not afford an employee a right of appeal might still act reasonably (because the appeal would have been futile), but this was not such a case. It went on to recommend that employers should offer a right of appeal in cases of this kind as an appeal provides an opportunity for matters to be considered more calmly than can be done as the time limit expires.
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