05 Jul 2018

In Afzal v East London Pizza Ltd trading as Dominos Pizza (UKEAT/0265/17), the Employment Appeal Tribunal (EAT) held that an employee should have been given the right to appeal when he was dismissed for failing to produce evidence of an application that extended his right to work. 

Facts

Mr Afzal, a Pakistani national who had been married to a European national since 2011, had been given time-limited leave to work until 12 August 2016. He had been employed by East London Pizza Ltd trading as Dominos Pizza (Dominos) since October 2009, initially as a delivery driver and working up to acting assistant manager and a manager in training. 

From 15 July 2016, he was able to apply for evidence of his right to permanent residence, which would extend his right to work in the UK. As long as he made the application in time, he would be permitted to work while it was being considered. Although he made the application at the last minute, it was still made in time. 

Despite being reminded by Dominos to provide evidence of his application before the deadline of 12 August 2016, Mr Afzal did not email Dominos until that date. Dominos could not open the attachments to the email and, with no evidence to suggest Mr Afzal was entitled to work, notice of dismissal was posted to him on 12 August 2016 to avoid any risk to the business from continuing to employ him. 

Dominos did not follow any procedure before dismissing Mr Afzal and he was not given the right of appeal against the decision. Mr Afzal brought a claim for unfair dismissal. 

Employment tribunal decision

The employment tribunal (ET) held that Mr Afzal's dismissal was fair and that it was for some other substantial reason. It found that there was "nothing to appeal against" as Dominos reasonably believed that Mr Afzal had not made the application at the time of his dismissal. Mr Afzal appealed.

Employment Appeal Tribunal decision

The EAT allowed Mr Afzal's appeal. While Dominos genuinely believed that Mr Afzal did not have the right to work because they did not have evidence of this, their belief was wrong. The appeal process could have satisfied Dominos that Mr Afzal had the right to work in the UK and had made his in-time application. An appeal would have enabled Dominos to make various checks to satisfy themselves that the application was made in time and they could have then rescinded the dismissal.

The EAT concluded that it was good employment relations practice for an employer to offer an appeal in circumstances like these. There will be cases where an employer wrongly believes that an employee does not have a continuing right to work and the appeal process allows the opportunity for this kind of case to be reconsidered.

The EAT remitted the case to the same ET judge to deal with the question of unfair dismissal.

Comments

This case is a good reminder of the importance of the right of appeal. Employers should not take the view that there is no point in appealing, or nothing to appeal against. The employer might have avoided an unfair dismissal claim in this case if it had allowed an appeal.

The Acas Code of Practice recommends that employees have the opportunity to appeal, and compensation can be increased by up to 25% if the Acas Code is not complied with. A dismissal is more likely to be fair if the employee has a right of appeal. The EAT in this case highlighted the reasons why the appeal would have made a difference by allowing further evidence to be presented.