Is it fair to refuse to give a right of appeal against dismissal, where the employer has reasonably (but mistakenly) reached the conclusion that an employee has no right to work in the UK?
Almost never, held the EAT in Afzal v East London Pizza Ltd t/a Dominos Pizza.
The Claimant had the right to work in the UK but had failed to produce evidence before the end of his limited leave to remain (which gave him the right to work) in August 2016. On the day that his leave would have expired, Mr Afzal sent an email to his employer with evidence of his application to the Home Office. That application automatically extended his right to work. The attachments with the evidence could not be opened and the Respondent dismissed to avoid civil and criminal penalties under the Immigration, Asylum and Nationality Act 2006.
In the dismissal letter, East London Pizza failed to offer the right to an appeal. They also argued in the tribunal that there was "nothing to appeal against": new evidence would not have undermined the reasonableness of the Respondent's belief at the time of dismissal.
The EAT rejected that argument, holding that the whole of the process, including an appeal, was relevant to the question of fairness. He decided that production of the evidence of right to work "could have happened during an appeal process in various ways" and the contract could have been revived "without fear of prosecution or penalty".
Thanks to Matthew Jackson of 10 KBW for preparing this case summary.