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'illegal' employee should have had the right to appeal against their dismissal

29 June 2018

The Employment Appeals Tribunal (EAT) recently considered whether an employee who was dismissed for failing to provide evidence of his continued right to work in the UK should have been given the right to appeal.

In Afzal v East London Pizza Ltd t/a Domino’s Pizza, Mr Afzal’s time-limited leave to work in the UK was due to expire on 12 August 2016. As long as he applied for a document evidencing his right to permanent residence by 12 August, he could continue working while his application was considered. On 12 August Mr Afzal sent his employer an email purporting to attach evidence of his application which they could not open. Worried about potential criminal and civil sanctions, Mr Afzal was dismissed. No right of appeal was given on the basis of the employer’s genuine belief that his continued working was prohibited by law. When it received evidence of his right to continue working, the employer offered to re-engage Mr Afzal as a new starter.

Overturning the decision of an Employment Tribunal, the EAT decided that providing the right to appeal was relevant to the question of fairness, noting that in modern employment practice the right is virtually universal and is recommended by the relevant Acas Code of practice. The EAT found that if an appeal had been offered Mr Afzal could have established his right to work and his dismissal could have been reversed. The EAT sent the claim back to the Employment Tribunal to reconsider its decision.

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