Right of Appeal, Fairness of Dismissal, and Right to Work

In unionised workplaces it is normally a given that an employee will have a right of appeal against a decision to dismiss them. Similarly, the ACAS Code of Practice on Disciplinary and Grievance Procedures explains that “where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal the decision” with the same Code also stating that “employers should allow an employee to appeal against any formal decision made.” In Afzal v East London Pizza Ltd  the EAT also noted that the right to appeal a dismissal was “virtually universal”.

The case of Afzal concerned a wholly common scenario in which the employer, fearful of being subject to Home Office immigration fines, sought evidence from an employee that he had permission to work. And, understandably, in the absence of such the employer having sight of any evidence that Mr Afzal did indeed have the right to work in the UK (as in fact he did) the employer, not unreasonably, had to consider dismissing him. So far so good.

It was at this point dispensed with ‘reasonableness’ and instead wrote to the employer (without any sort of meeting) to dismiss him and, also, declined to give Mr Afzal any right to appeal against his dismissal. Both of these are pretty much as clear cut breaches of the ACAS Code of Practice as one could hope to find. Despite this, the Employment Tribunal ruled that the dismissal was still fair.

On the matter of the appeal the Employment Tribunal explained its decision that the lack of an appeal right did not make the dismissal unfair as follows:

Nevertheless, I accept Mrs Winstone’s submission that in this case there was nothing to appeal against: the test which the employer had to apply is whether before the date of the expiry of the permission it had reasonable grounds for believing that the Claimant had made a valid application for an extension. So, once the date had passed, there was no basis for the employer to, as it were, back calculate or back-fill a belief it did not have on 12 August. In those circumstances, while not ideal, I cannot say looking at it as a whole that it was unfair to fail to offer a right of appeal in the dismissal letter.

Thankfully, Mr Afzal appealed this decision to the Employment Appeal Tribunal. On the central issue of whether the tribunal had made an error of law on it finding that ‘there was nothing to appeal against” the finding of the EAT is worth quoting:

    In this case the Employment Judge found that there was “nothing to appeal against” (see paragraph 31 of his Reasons, which I have already quoted). This is because he thought the test which had to be applied on an appeal was whether before the expiry of the permission the Respondent had reasonable grounds for believing that the Claimant had made a valid application for an extension. In my judgment, there is an error of law in that reasoning.

    The Respondent was justified in dismissing the Claimant urgently on 12 August because it did not have evidence that he was entitled to work in this country. Therefore, it had a genuine belief that his employment was prohibited by statute. In fact, however, this belief was wrong and the Respondent was always entitled to employ him. If an appeal had been offered and the Claimant had produced evidence which satisfied the Respondent that he was entitled to work, the Respondent could immediately have rescinded the dismissal without fear of prosecution or penalty. There was never a time when the Claimant was not entitled to work. The key issue on appeal would therefore have been whether the Claimant actually had an entitlement at all material times to work properly backed by evidence. If he had, there was no reason why he should not have been reinstated.

Although technically the EAT was not able to find that the denial of a right of appeal made the dismissal unfair (because of the case of Jafri v Lincoln College), there is little doubt that the EAT were in little doubt as to the fairness of the dismissal given it’s comment that “While I believe that in the circumstances of this case the dismissal ought to be held to be unfair in the absence of an appeal, that does involve some degree of judgment of my own and therefore I will not substitute my own decision.”

The decision in Afzal is I think a helpful one in two ways.

First, the right to a hearing and an appeal are, as highlighted at the beginning of this post, integral to the ACAS Code of Practice. The ACAS Code however does not always apply to dismissals for some other substantial reason SOSR, as I have discussed before. In Afzal the dismissal was for some other substantial reason.  Although there was no consideration as to the relevance of the ACAS Code Afzal is a useful case to show that the core principles of natural justice will normally apply to SOSR dismissal cases.

Second, for right to work cases specifically the judgement concluded with specific advice to employers which employees and employee representatives would do well to explicitly highlight to employers where their procedures do not adhere to minimum standards:

In my judgment, it is good employment relations practice for an employer in circumstances of this kind to offer an appeal. Experience shows that it is an anxious time both for employer and employee when a limited leave to remain or work expires and a further application has to be made. Difficult technical questions may arise; relevant documents may be difficult to find; and I might add that experience shows that the Employee Checking Service is not always fully informed or up to date. Affording an appeal gives an opportunity for matters of this kind to be considered again rather more calmly than can be done as the time limit expires. There will be cases, and in my experience they are not particularly uncommon, where an employer wrongly believes that an employee does not have a continuing right to work. The appeal process affords an opportunity for this kind of case, which can result in real feelings of injustice, to be looked at again.