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Right to work

The Employment Appeal Tribunal in the case of Afzal v East London Pizza Ltd t/a Dominos Pizza has held that an employee who was dismissed for failing to provide evidence of his right to work in the UK should have been given a right to appeal.

Background

The Claimant’s leave to work in the UK was due to expire on 12 August 2016. If he applied for a document evidencing his right to permanent residence by that date he could continue working while his application was being considered.

On 12 August 2016, the Claimant sent Dominos an email with attachments which he said evidenced his continued right to work in the UK. However, the attachments couldn’t be opened and Dominos dismissed the Claimant on the basis that his continued employment would have been illegal. He was given no right to appeal. When Dominos later received evidence of his continued right to work, it offered to re-engage him as a new starter.

The Claimant issued a claim for unfair dismissal.

Decision

The Employment Tribunal dismissed the claim. It held that the Claimant had been fairly dismissed for “some other substantial reason”, namely, the reasonable belief by Dominos that the Claimant’s continued employment would be illegal. The tribunal concluded that there was “nothing to appeal against” as the relevant question was whether Dominos had reasonable grounds to believe that the Claimant had not made a valid application by 12 August 2016.

The Employment Appeal Tribunal (“EAT”) disagreed. It held that at an appeal the Claimant could have provided documents that demonstrated his continued right to work and it could have been established that while Dominos had genuinely believed on 12 August that the Claimant’s employment was illegal, it had been wrong. If the Claimant’s continued right to work was established, he could have been reinstated without loss of continuity of service.

Comment

Employers can be liable for a large civil penalty and commit a criminal offence if they employ a worker without the right to work in the UK and/or if they know or “have reasonable cause to believe” that the worker did not have the appropriate immigration status. However, this case demonstrates that although an employer’s reasonable belief that an employee does not have a right to work in the UK can be a fair reason for dismissal, a fair process should still be followed.

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