30 July 2018 | Comment | Article by Eleanor Bamber
Given the substantial civil and criminal penalties associated with employment someone who does not have the legal right to work in this country, employers are understandably nervous when it appears that an employee cannot evidence this right.
Dominos Pizza dismissed Mr Afzal for failing to demonstrate that he was in the process of making an application for permanent residence (which would mean his right to work continued). The deadline for making this application was 12 August 2016 and although Mr Afzal had apparently tried to send Dominos Pizza an email on 12 August 2016 showing this, Dominos Pizza could not open it.
As a result, Dominos Pizza decided to dismiss Mr Afzal immediately for fear that otherwise they may be employing him illegally. No right of appeal was given. At first instance, the employment tribunal found that Mr Afzal’s dismissal was for “some other substantial reason”, that Dominos Pizza had a genuine belief that they were prohibited from employing him and that it had been reasonable for Dominos Pizza to come to this conclusion based on the lack of evidence available. In these circumstances, the tribunal found that there was nothing to appeal against.
The EAT disagreed with the tribunal and found that an appeal could have established that the (genuine) belief that continuing to employ Mr Afzal was illegal was wrong. There were a number of measures that Dominos Pizza could and should have taken including accepting an assurance from Mr Afzal’s solicitor or seeking a notice from the Home Office Employer Checking Service.
The EAT has remitted the case to the employment tribunal.
The draconian penalties which face employers who "get it wrong" by continuing to employ someone who does not have the right to work in the UK makes it very tempting to err on the side of caution in every case. This case does, however, serve as a reminder that knee jerk reactions to this type of case may not always be the best solution. Employers ought to ensure that they have done as much as possible to try and establish whether there is a right to work before taking the decision to dismiss. In cases where the employer concludes that dismissal is appropriate, there should certainly be a right of appeal offered.
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