06 July 2018
As we have previously blogged, if an employee fails to produce evidence of his right to work in the UK, it will not necessarily be fair for an employer to dismiss on the basis that it would be illegal to continue to employ the employee.
However, dismissal in these circumstances can still be fair if the employer has a reasonable and genuinely held belief that it would be illegal to continue to employ them and has followed a fair process.
In Afzal v East London Pizza Ltd t/a Dominos Pizza, the Employment Appeal Tribunal has decided that where the employer had dismissed an employee based on a reasonable but mistaken conclusion that he did not have the right to work in the UK, not giving the employee a right of appeal against dismissal was unfair.
The employer was aware that Mr Afzal had the right to work in the UK until 12 August 2016. The employer twice asked him to provide evidence that he had the right to work in the UK beyond that date. On 12 August 2016, Mr Afzal sent an email to his employer with attached evidence of his application to the Home Office. In fact, that application had automatically extended his right to work. The employer could not open the attachments with the evidence and dismissed him on the basis that continuing to employ him would have been illegal. They did not give him the right to appeal.
The ET found that this did not make the dismissal unfair on the basis that new evidence would not have undermined the reasonableness of the employer’s belief at the time of dismissal.
The EAT rejected that, deciding that that the whole of the process, including the right to an appeal, was relevant to the question of fairness.
Employers are understandably concerned not to risk employing individuals without the right to work in the UK because this leaves them liable to fines of £20,000 per illegal employee and the loss of trusted visa sponsor status. The important thing for employers to understand is that they can stay within the law in these circumstances by dismissing in this way, providing they follow a fair process, including giving a right to appeal. This would have meant the employer was not risking prosecution or penalty.