Right to work, right to an appeal: Afzal v East London Pizza Ltd t/a Dominos Pizza

• An employee failed to provide documentation proving his right to work in the UK despite several reminders.

• The worker did have the right to work in the UK but struggled to provide the relevant documentation in time.

• The employer dismissed the employee without the right to appeal.

• If there was an appeal process the employee would have produced documents proving his right to work.

In the case Mr F Afzal v East London Pizza Ltd t/a Dominos Pizza, the claimant from Pakistan had been employed by Dominos since 2009. He had time-limited leave to work in the UK that expired on 12th August 2016, therefore he made an application to the home office to extend his right to work in the UK. So long as he applied before the expiry date, he was entitled to work while his application was pending.

A member of Dominos HR team, Mr Cunningham, wrote to the claimant on 3rd June 2016 and 15th July 2016 to remind the claimant that he should produce evidence that he made an in-time application and requested this be provided before 11th August 2016. No evidence was provided to Mr Cunningham and instead, the claimant sent evidence to his line manager, Mr Sahota, that contained two attachments at 4:28pm on 12th August 2016.

Mr Sahota could not open the attachments. Therefore,  Dominos had no evidence that the claimant had made an in-time application before the 12th August 2016. Mr Cunningham, concerned with any risk of employing a worker who did not have the right to work in the UK, posted notice of his dismissal on 12th August 2016. The claimant received the notice on 15th August 2016 which was the effective date of termination of his employment. There was no appeal offered to the claimant after his dismissal.

The claimant brought a claim for an unfair dismissal. The Tribunal held the dismissal was fair, however, whilst the Employment Appeal Tribunal (‘EAT’) held that it was reasonable for the employer to urgently dismiss the claimant due to his inability to produce evidence to satisfy right to work checks, they found that  the employer should have offered a right of appeal. If an appeal was offered it would have allowed the employer to rescind the dismissal without fear of hiring an illegal worker.

Therefore, the EAT allowed the appeal.

Aspire Comment

It is always important to err on the side of caution with right to work checks as it is a criminal offence to employ someone illegally. Equally, it is necessary to follow correct HR procedures to avoid any chance of an unfair dismissal claim being raised. It is good practice to offer an appeal process as it allows both the employee and employer to state facts and clarify any misunderstandings.

To read the full case transcript click here.