HR NEWS | Right to work – failure to give right of appeal unfair

HR NEWS | Right to work – failure to give right of appeal unfair

According to a recent decision by the Employment Appeal Tribunal, an employee who was dismissed after failing to produce evidence of his right to work in the UK should have given the right to appeal.

What are the facts of this case?

In Afzal v East London Pizza Ltd t/a Dominos Pizza, the employee’s visa was due to run out. He was asked by the employer to produce evidence that he had made an in-time application. On the very last day his leave would have expired, the employee sent an email to the employer with two attachments. But the employer could not open the attachments.

Worried about incurring substantial penalties for continuing to employ someone who has no right to work in the UK, the employer dismissed the employee. They did this without following a procedure and did not offer the right of appeal. They did offer re-engagement if the employee could provide the required evidence. This meant he would be a new starter and as such, his continuous service would be broken.

He submitted a claim to an Employment Tribunal for unfair dismissal.

What did the Employment Appeal Tribunal (EAT) say?

It is important to point out that the employee had made an in-time application. Therefore he did actually have the right to work at all material terms.

Disagreeing with the Employment Tribunal, the EAT concluded that if an appeal had been offered, there were a number of ways in which the employee could have demonstrated evidence that he had the right to work in the UK. He could have shown documents proving he had made an in-time application, the employer may have accepted the word of a solicitor or the employer could have made their own enquiry with Employment Checking Service. Had he been able to show his right, he could have bee reinstated. The employer, therefore, would not have been at risk of prosecution or penalty.

His Honour Judge David Richardson said ‘it is good employment relations practice for an employer in circumstances of this kind to offer an appeal…. Affording an appeal gives an opportunity for matters of this kind to be considered again rather more calmly than can be done as the time limit expires’.

Final thoughts

Under the Immigration, Asylum and Nationality Act, a person commits an offence if they employ an employee knowing they are disqualified from employment by reason of the employee’s immigration status. Therefore employers will want to act fast to avoid facing penalties. But the appeal is an important employment practice and will be taken into account when accessing the fairness of a dismissal.

Director of Legal Services

James Tamm

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