Hello and welcome back to your weekly case law update. Regrettably, football isn’t coming home, World Cup fever is over and we return to the drudgery of cabinet resignations and Brexit negotiations. Speaking of Brexit, we have a case that will have a lot more relevance if we do not have freedom of movement post-leave. After looking at protected disclosures last week, this week’s case focuses on the right to work in the UK.
In the UK, employers must ensure all employees have the right to work in the UK. This is usually done during recruitment and employees will provide relevant documentation to ensure they can start work. Any employer who does not perform these checks is in line for civil, including large fines, and potentially criminal penalties under the Immigration, Asylum and Nationality Act 2006.
If an employer believes an employee does not have the right to work in the UK then the case of Baker v Abellio London Ltd provided a checklist to ensure any right to work related dismissal is fair. The case of Nayak v Royal Mail held any such dismissal can be fair even if the employee actually does have the right to work in the UK, but the employer’s belief they do not is genuine.
The question this week is:
Can an employer deny a dismissed employee the right of appeal if they believe the employee doesn’t have the right to work in the UK?
Mr Afzal, the Claimant, was an assistant manager at East London Pizza Ltd, the Respondent. The Claimant was a well-regarded employee and had risen up the ranks, starting as a delivery driver. The Claimant was also a Pakistani national but had lived in the UK since 2009, his right to work document was set to expire on 12 August 2016.
The Respondent was well versed in right to work documentation. They wrote to the Claimant on two occasions to remind him of his visa expiry and to provide new right to work documentation before 11 August 2016 to avoid any last-minute issues.
The Claimant applied for the right to permanent residence, this application extended his right to work in the UK. He did not email evidence of this application to the Respondent until late afternoon on 12 August 2016 and the Respondent could not open the attached evidence.
Fearing they might be employing the Claimant illegally, the Respondent dismissed the Claimant. No dismissal procedure was followed and no right of appeal was given. The reason for this, the Respondent argued, was because the Respondent had no time to follow a procedure and an appeal was redundant if the Claimant didn’t have the right to work in the UK.
The Claimant initiated ET proceedings for unfair dismissal. The ET rejected the Claim, it held the Respondent was right to dismiss the Claimant because it genuinely believed the employment was illegal. Not allowing the appeal was part of that belief and thus the dismissal was fair.
The Claimant appealed and the EAT allowed the appeal. Despite the Respondent’s genuine belief, the Claimant did have the right to work in the UK. Had an appeal been carried out this evidence could have been presented and the Claimant’s employment could have resumed without the Respondent fearing they were employing him illegally.
The takeaway point:
No, an appeal against dismissal can remedy any mistakes during the dismissal process. Nine times out of ten the appeal does not change the outcome of dismissal. However, in rare cases new evidence can come to light that would change the employer’s mind over the sanction. Further to the cases of Nayak and Baker mentioned above, an employer should still carry out an appeal to ensure they have made the correct decision