Under UK immigration law employers may be liable to pay a penalty if they employ someone who they know is not allowed to work in the UK. In Afzal v East London Pizza Ltd t/a Dominos Pizza, the Employment Appeal Tribunal (EAT) held that even if an employer genuinely believes a worker does not have the right to work, they cannot deprive them of a right of appeal unless it would have been futile.
Mr Afzal, who is from Pakistan, started working for Dominos in 2009. After marrying a European national in 2011, he acquired time-limited leave to work in the UK until 12 August 2016 by which stage he would have lived here permanently for five years. Although he could not apply for a right to permanent residence before 15 July, so long as he applied before 12 August he was entitled to work while it was considered.
Dominos wrote to Mr Afzal on 3 June and 15 July 2016 reminding him that he needed to provide them with evidence of his application and that he should do so before 11 August to avoid last minute problems. Although Mr Afzal made his application within the time limit (albeit very late in the day), he did not provide Dominos with any evidence to that effect until 4.28 on 12 August in the form of an email with two attachments. However, his manager could not open them and Mr Afzal did not resend the information in another format.
To avoid risk of prosecution, under the Immigration, Asylum and Nationality Act Dominos dismissed Mr Afzal by letter dated 12 August, without offering him a right of appeal. He claimed unfair dismissal.
Section 21 of the Act states that it is an offence to employ someone knowing that their immigration status does not allow them to work.
Section 15(3) states that an employer is excused from paying a penalty if they can show that they complied with the “prescribed requirements” in relation to employment.
The Immigration (Restrictions on Employment) Order 2007 also provides various exceptions to the penalty regime.
The tribunal held that the dismissal was fair for some other substantial reason, namely that Dominos genuinely believed that Mr Afzal’s employment was prohibited by statute. Not only was it reasonable for the company to hold this belief, it was also reasonable for it to have acted decisively on 12 August to avoid exposure to criminal and civil penalties.
As for the failure to offer him a right of appeal, the judge held that “while not ideal” it was not unfair looking at the matter “as a whole”. As the company had reasonable grounds for their belief on the date that they dismissed him, there was nothing for Mr Afzal to appeal against. Once the date had passed, there was no need for them to “back calculate or back-fill a belief” they did not have on 12 August.
The EAT, however, dismissed that argument. It was established good employment practice to provide an appeal. The ACAS code of practice states an appeal should be given and it is part of the whole process when determining if a dismissal is fair.
Although the company clearly had a genuine belief that Mr Afzal was not entitled to work, that belief was wrong. Had the company offered him an appeal, he could have produced evidence to show he was entitled to work. The company could then have rescinded the dismissal without fear of prosecution as Mr Afzal had been entitled to work all along.
The EAT remitted the matter back to the same tribunal to decide whether the dismissal was unfair.
This case is a useful reminder to employers that they should allow an employee a right of appeal especially in cases like this where there can be misunderstandings about the right to work where a limited leave to remain or work expires and a further application has to be made. As the EAT pointed out, “Affording an appeal gives an opportunity for matters of this kind to be considered again rather more calmly than can be done as the time limit expires.”