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Employee Dismissed over Right to Work - Appeal Should Have Been Granted

on Friday, 06 July 2018.

Where an employer has reasonably (but mistakenly) reached the conclusion that an employee has no right to work in the UK, is it fair to refuse a right of appeal against dismissal?

Afzal v East London Pizza Ltd t/a Dominos Pizza

The day before his time-limited leave to work expired, Mr Afzal sent an email to his employer with two attachments which he said contained evidence of the application for permanent residence. However, his employer was unable to open the attachments and dismissed him, being concerned about potential criminal or civil penalties under the Immigration, Asylum and Nationality Act 2006.

The employer failed to offer a right of appeal in the dismissal letter sent to Mr Afzal. Once evidence of his right to continue working was received, the employer offered to re-engage him as a new starter with no continuous employment. Mr Afzal brought a claim for unfair dismissal to the Employment Tribunal (ET).     

The ET found that the dismissal was fair on the grounds of some other substantial reason, namely that the employer genuinely believed that his employment was prohibited by statute. Mr Afzal appealed.

The Appeal

The Employment Appeal Tribunal found that the employer may have been justified in its actions in relation to the Mr Afzal's dismissal. However, by not offering the right of appeal, it denied him the opportunity to produce evidence of his entitlement to work. Once in receipt of this evidence the employer could have rescinded the dismissal without fear of prosecution or penalty.

The case will return to the Employment Tribunal for a final ruling.

What Does This Mean for Employers?

The decision acts as a reminder to employers of the importance of following fair employment processes, even in immigration compliance cases. Allowing a right of appeal will almost always be seen as good practice.

There is a grace period for current employees who have provided evidence of making a fresh application before their current visa expires. In these circumstances, the employer has 28 days, from the date of expiry of the employee's visa, to obtain a positive verification notice from the Employer Checking Service.


Do you need legal advice on employment law issues? Please contact Mark Stevens in our Employment Law team on 0117 314 5401.

For support with any immigration issue, please contact Tom Brett Young in the Immigration team on 0121 227 3759.

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