In Afzal v East London Pizza Ltd (t/a Dominos Pizza) (Rev 1)  UKEAT 0265_17_1304 the Employment Appeal Tribunal (“EAT”) overturned the ruling of an Employment Tribunal that the dismissal of a worker who had failed to prove his right to work in the UK was fair; the EAT held that the failure to allow him to appeal the decision denied him an opportunity to provide the relevant information and therefore rendered his dismissal unfair.
The factual background of Afzal v East London Pizza Ltd (t/a Dominos Pizza)
Mr Afzal, who is from Pakistan, commenced employment with East London Pizza Ltd t/a Dominos Pizza (“ELP”) on 27 October 2009 as a delivery driver; by August 2016 he had been promoted to the position of assistant manager (and manager in training).
Mr Afzal was married to an EU national and acquired time-limited leave to work in the UK, which expired on 12 August 2016. After that time, having been a permanent resident for 5 years, he had the right to apply for a document evidencing his right to permanent residence; this, in turn, would continue his right to work. The application for this document could not be submitted before 15 July.
An employer is liable to prosecution (under the Immigration, Asylum and Nationality Act 2006 (“the Act”)) and the payment of substantial civil fines (under the same Act) if they employ a person who has no right to work in the UK.
ELP was experienced in dealing with immigration issues concerning its employees; these were handled by a member of its HR team, Mr Cunningham. He wrote to Mr Afzal on 3 June and 15 July 2016 reminding him that he should present ELP with evidence that he had made an in-time evidence application, and that he should do so before 11 August 2016 to avoid last-minute problems. Mr Afzal did not send any such evidence, although he had made the relevant application to the Home Office in time. In the end he only sent evidence of his application to ELP by email at 4.28pm on 12 August 2016, with this email containing two attachments which apparently contained evidence of the application.
Mr Sahota, the manager dealing with the matter on ELP’s behalf, could not open the attachments. He explained this to Mr Afzal, and he expected Mr Afzal to send him in a form he could read. However, Mr Cunningham, fearing a breach of the Act if ELP continued to employ Mr Afzal without evidence of his application, posted notice of termination to Mr Afzal on 15 August 2016; this was received by Mr Afzal on 15 August 2016. No disciplinary procedure was followed prior to Mr Afzal’s dismissal, and he was afforded no right of appeal against the decision to dismiss him.
Mr Afzal pursued a claim for unfair dismissal in the Employment Tribunal.
The decision of the Employment Tribunal
The Employment Tribunal rejected Mr Afzal’s claim for unfair dismissal, holding that the potentially fair reason for dismissal was ‘Some Other Substantial Reason’ and that the dismissal as a whole was not rendered unfair to offer a right of appeal.
Mr Afzal appealed against this decision.
The decision of the Employment Appeal Tribunal
The EAT upheld Mr Afzal’s appeal, holding that an appeal was integral to whether a dismissal had been fair or not and, further, that the Employment Judge had made an error of law in applying the test for the fairness of the dismissal. The EAT held that the allowing of an appeal in Mr Afzal’s circumstances may have led to the provision of the evidence showing that he had made his application for permission to continue to work in the UK in time and, therefore, may have prevented his dismissal.
The EAT remitted the case to the Employment Judge to deal with the fairness of the dismissal and remedy.
Our solicitors’ comments on Afzal v East London Pizza Ltd (t/a Dominos Pizza)
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “As HHJ Richardson stated in his judgment, the right of appeal will normally be an essential ingredient in whether a dismissal was fair or not; the failure to allow an appeal will generally (although not always) render a dismissal unfair.”
The transcript of the EAT’s decision in Afzal v East London Pizza Ltd (t/a Dominos Pizza) can be found here.