The importance of offering the right to appeal

Offering employees the chance to appeal dismissal decisions can often be regarded as simply a best practice exercise. However, as seen in the case of Afzal v East London Pizza Ltd, failing to offer an appeal in a right to work dismissal could render the decision unfair. The case in question involved Mr Afzal, a Pakistani national who had worked for his employer as a delivery driver since 2005. Afzal possessed a time limited right to work in the UK on account of his marriage to an EU national in 2011, however his right to work was scheduled to end during August 2016. Ahead of this deadline, Afzal’s manager, who had experience with immigration procedures, wrote to him on two separate occasions reminding him of the need to present evidence of either his right to permanent residency, or that he had at least applied for this right, by no later than August 11th. The employer reiterated that if he was unable to provide this evidence by the agreed upon date then they would be forced to terminate his employment, in line with their strict workplace policy. Afzal had in fact made the necessary application and attempted to send confirmation in an email to a HR representative on August 12th, however they were unable to open the relevant attachments and informed the employee as such. As Afzal has failed to relay this information to his manager he was subsequently issued with a notice of dismissal with immediate effect, which was received on August 15th. The employee was not offered any opportunity to appeal this as the employer believed there was nothing to appeal against, because of this Afzal decided to bring a claim for unfair dismissal to an Employment Tribunal (ET). This claim was originally dismissed by the ET, who found that the employer had genuinely believed that by keeping Afzal employed, they would have been in violation of the Immigration, Asylum and Nationality Act 2006 (IANA). Additionally, as Afzal had failed to provide timely confirmation of his application, the ET decided the employer had reasonable grounds to assume the application hadn’t been made and proceed with the dismissal. In regard to the lack of appeal, the ET found this did not render the dismissal unfair as due to the impact of immigration restrictions there was nothing to appeal against. Afzal appealed the decision. The EAT accepted that the employer was right to dismiss Afzal in the first place as he was unable to provide them with confirmation of his right to work in the UK in appropriate time. However, the decision was ultimately ruled unfair as the employer failed to offer the right to an appeal, which in this case would have allowed Afzal to present additional evidence, specifically that he had actually applied for permanent residency and therefore was legally able to work in the UK. This ruling should act as a reminder of the importance of offering a right to appeal in disciplinary cases, even those where the decision to dismiss seems from the outset to be fully justified. The principle purpose of an appeal is to allow any new evidence to be presented and this should be a key part of any disciplinary procedure.

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