New! Part Two: Brexit – Immigration & Employment Law: a Conflict in Practice?

In Afzal v East London Pizza Ltd (trading as Domino’s Pizza) UKEAT/0265/17/DA, a foreign individual working in the UK fought his case when his UK employer dismissed him without appeal due to a lack of evidence surrounding his right to work.

On the surface, the case seems straightforward: if a citizen has no proof of permission to work in the UK, their employer has good reason to dismiss them to avoid sanctions.

However, the devil is in the detail with this case; a case which brought to light the confusion surrounding how the ‘right to work’ legislation works in conjunction with employment law.

The background:

Having started his career as a delivery driver for the Pizza company, hard work and commitment had seen him rise through the ranks to eventually become an assistant manager. Originally from Pakistan, Mr Afzal had obtained some form of time-limited permission to work in East London and was married to an EEA national.

Prior to the expiry of Mr Afzal’s right to work, his employer had requested that Mr Afzal provide evidence that he had made an application to extend his visa but received no proof in return. Ahead of the expiration date, however, Mr Afzal made an application just in time and sent this as proof to his employer in an email attachment.

Unfortunately, Mr Afzal’s employer claimed to have trouble opening the email. Eager to avoid the sanctions of the illegal working regime, Domino’s dismissed Mr Afzal on the day his permission to work expired.

The decision:

Following his dismissal, Domino’s refused Mr Afzal a right of appeal against their decision. They did, however, state their willingness to re-engage Mr Afzal once he could prove he was living in the country legally through regular immigration status, but on inferior terms under their policy.  Mr Afzal provided Domino’s with evidence of his application three days after his dismissal.

Despite this, the Employment Tribunal was forced to rule the dismissal as fair since ‘there was nothing to appeal against.’ As Domino’s had not been provided with evidence within a sufficient time-frame, they had good reason to believe that Mr Afzal did not have a right to work in the UK.

Under section 98(1)(b) of the Employment Rights Act 1996, the decision to dismiss Mr Afzal was counted as “some other substantial reason.”

What happened next:

The Employment Appeal Tribunal were quick to overturn the Tribunal’s judgement, on the premises that Mr Afzal was not given a right to appeal his dismissal. While the immediate dismissal had been justified due to the lack of evidence provided within the timeframe, the EAT argued that had an appeal been offered, Mr Afzal could have proved he was entitled to work.

If an appeal had been granted, the dismissal could have been rescinded and Mr Afzal could have been re-instated into his former role with the same rights.

Since an employer cannot be prosecuted or fined if the individual suspected of working illegally does, in fact have a right to work, an appeal would have seen Mr Afzal return to his job as an assistant manager without any breach of the illegal working legislation.

The EAT sent the case back to the Tribunal for a re-hearing on liability.

Navigating the legislation: advice for employers

This case helps to highlight the complex and often conflicting nature of immigration law and the fair treatment of employees. Further, it serves as proof of how the anxious atmosphere compounded by the “hostile environment” is already influencing employers in making rash decisions regarding their employees. Of course, it goes without saying that Domino’s did have a valid reason enshrined in legislation: but in practice, urgently producing an official document to prove our right to work can be problematic.

There are many reasons why an employee may not be able to provide evidence of their right to work within a matter of days – just ask the large swathe of EEA nationals living in the UK or persons born British who have never obtained a passport: some cannot afford the fees and often, complications arise and lengthen the process.

When faced with the prospect of fines of up to £20,000 per worker and potential criminal prosecution, however, it’s only natural for an employer to respond accordingly and take drastic action. Of course, employers have a duty to check on the status of their employees, but according to His Honour Judge David Richardson:

“Difficult technical questions may arise; relevant documents may be difficult to find; and, I might add, experience shows that the Employee Checking Service is not always fully informed or up to date.”

At the end of the day, Domino’s knee-jerk reaction to Mr Afzal’s lack of immediate evidence saw a trusted and dedicated employee fired for failing to beat the clock in his attempt to prove his legal status. Domino’s may have protected themselves from possible complicity in illegal working, but the result was a devastated employee bringing forward a claim of unfair dismissal.

A prompt but fair investigation with room for appeal should allow employees sufficient time to provide proof of their right to work. Had Domino’s taken the time to identify the type of immigration status that the Claimant had (or could have had), they would have appreciated that his marriage to an EEA national would have given him an automatic right to live and work in the UK under EU free movement law without the need to renew an official document.

As well as shining a light on the panic that has been created amongst migrants and employers, this case serves to prove that situations such as these should be carefully assessed, and the facts fully established with the aid of an expert immigration and employment lawyer, prior to any drastic decision being made.

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