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Pizza shop worker who couldn’t prove right to work was entitled to appeal dismissal

28 Jun 2018 By Hayley Kirton

EAT finds appeal could have proved trainee manager had applied to extend leave

A pizza shop trainee manager who was dismissed after failing to produce documents proving he was entitled to work in the UK should have been allowed to appeal the decision, the Employment Appeal Tribunal (EAT) has decided.

Disagreeing with a previous tribunal decision, the EAT found the company could have established Fahim Afzal’s right to work during the course of an internal appeals procedure

Afzal, who was from Pakistan but married a European national in 2011, joined East London Pizza, a local franchise of Domino’s Pizza, as a delivery driver in October 2009. He rose through the ranks to become an acting assistant manager and a manager-in-training by August 2016. 

Afzal had been granted time-limited leave to work until 12 August 2016. By this point, he would have been in the UK for five years, so could apply for evidence of his right to permanent residence. He could not do this until 15 July but, as he applied before his time-limited leave expired, he had the right to continue working while his new application was being considered. 

On 3 June and 15 July 2016, a member of the company’s HR team wrote to Afzal to remind him to provide evidence showing he had applied to extend his right to work. However, Afzal sent nothing until 4.28pm on 12 August, when he emailed his line manager two attachments. 

Afzal’s line manager was unable to open the attachments and told him this, assuming Afzal would send across the information in a different format. As no evidence had been received proving Afzal still had a right to work by the end of 12 August, he was sent notice of his dismissal. He was not offered an opportunity to appeal this decision in his dismissal letter. 

Afzal took his case to London East Employment Tribunal, which declined his claim for unfair dismissal. While employment judge Foxwell acknowledged offering employees a chance to appeal a dismissal decision was “generally good employment practice”, in this case “there was nothing to appeal against” as the employer believed Afzal had not made the application to extend his leave at the point he was let go. 

The EAT allowed the appeal. Judge David Richardson said that while the initial decision to dismiss Afzal was “justified”, the appeal process could have satisfied the company that the trainee manager had the right to work in the UK, as he could have offered documents showing his application or provided enough detail for his employer to make their own inquiries.

“There will be cases, and in my experience they are not particularly uncommon, where an employer wrongly believes that an employee does not have a continuing right to work,” Richardson said. “The appeal process affords an opportunity for this kind of case, which can result in real feelings of injustice, to be looked at again.”

The judge opted not to replace the tribunal’s decision with his own finding of unfair dismissal and sent the case back for reconsideration. 

“The employer was caught out in its opinion that an appeal would make no difference to the outcome because it was relying on a reasonable belief that the employee did not have the right to work in the UK rather than hard evidence that the right did not exist,” said Andrew Willis, head of legal at CIPD HR-inform. “In these cases, employers should always be open to the fact that an employee’s right to work in the UK has not in fact lapsed and that an appeal could make a difference by providing the opportunity for evidence to be submitted.”

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