‘Boring Legal Stuff’ is how Domino’s Pizza describes its terms and conditions. While most customers and even some lawyers would agree with that, contractual rights can have very important implications, particularly when the employment relationship breaks-down.
In Afzal v East London Pizza Ltd (trading as Dominos Pizza) UKEAT/0265/17/DA, the Employment Appeal Tribunal considered whether the pizza company’s failure to provide a right of appeal against dismissal was unfair. As I write below, the judgment raises some wider concerns about a key aspect of Theresa May’s hostile environment policy, namely, the right to work legislation. [1]
The facts
Mr Afzal, from Pakistan, was an experienced delivery driver who over time became an assistant manager. He was married to an EEA national and, it appears, had obtained some form of time-limited permission to work. (I will return to this point later as I have some concerns about the clarity of language used in the judgment to describe his immigration status).
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Ahead of the expiry of Mr Afzal’s apparently time-limited permission to work, the employer requested that Mr Afzal provide evidence that he had made an application to ‘extend his leave’ but received no evidence from him. Mr Afzal did, however, make an application just in time and sent proof of this to his employer, attached to an email. There were difficulties opening the email and therefore, anxious to avoid the sanctions of the illegal working regime, on the day of expiry, Domino’s sent him a notice of dismissal.
Fancy a slice?
Domino’s followed a summary dismissal procedure but refused Mr Afzal a right of appeal against their decision. The company remained willing to re-engage Mr Afzal once he could show that he had regular immigration status, but on inferior terms under their policy.
Three days after dismissal, Mr Afzal provided Domino’s with evidence of his application.
The Employment Tribunal’s decision
The Employment Tribunal found that the dismissal was fair because ‘there was nothing to appeal against’, this being an open and shut case. As the employer had a genuine and reasonable belief that Mr Afzal had no right to work, the dismissal was for ‘some other substantial reason’ under section 98(1)(b) of the Employment Rights Act 1996.
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The Employment Appeal Tribunal’s decision
The EAT overturned the Tribunal’s judgment, it concluded that:
- Providing a right of appeal against dismissal is a ‘virtually universal’ practice (§ 21);
- While the urgent dismissal had been justified because the Domino’s held a reasonable (though mistaken) belief that Mr Afzal had no right to work, had an appeal been offered, Mr Afzal could have proved that he was entitled to work, the dismissal could have been rescinded and Mr Afzal re-instated to his former role with the same rights and entitlements, without any breach of the illegal working legislation;
- An employer cannot be prosecuted or fined if the person suspected of working illegally in fact has the right to work;
- On the facts, the employer’s internal policy that it would never re-instate a person to their former role if, on an appeal against dismissal, it came to light that the person had the right to work, was too inflexible (§ 27).
The EAT sent the case back to the Tribunal for a re-hearing on liability. In doing so, His Honour Judge David Richardson gave some general guidance at § 30:
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.
Conclusion and some concerns
Let me explain why I have a few concerns about lack of clarity in this judgment:
- The decision refers loosely to the Claimant’s ‘leave to remain’ and an application extending his ‘right to work’. It conspicuously avoids identifying the type of immigration status the Claimant had (or could have had). This is problematic because as the Claimant was married to an EEA national, he would have had an automatic right to live and work in the UK under EU free movement law, without the need for any official document. Remember, the illegal working rules only apply to persons ‘subject to immigration control’ (see section 15 of the 2006 Act). That does not include persons with inherent rights of residence, such as those who qualify under EU free movement law, Windrush-type cases and claims to British citizenship. It is unfortunate that the judgment omits to clarify Mr Afzal’s status. The judgment appears to be an example of automatic EU free movement rights being misinterpreted as time-limited ‘leave to remain’ under the Immigration Rules (which is granted or refused at the discretion of the Home Office). These are two *very different* schemes that appear to have been confused in the EAT’s judgment. [2]
- If the EAT is confused about this, what hope is there for employers to get it right under the threat of fines of up to £20,000 per worker and potential criminal prosecution?
- Mutual incomprehension between employment and immigration lawyers is common. Both these systems of law are highly technical and evolve at speed. They also intersect in a number of different ways, including the ‘right to work’ legislation. Lawyers and Judges in both fields will sometimes need to have a firm grasp of each of these systems, but frequently do not.
- It’s vital that Judges and lawyers can properly identify a person’s immigration status (and that includes any potential alternative rights of residence that they may have). That is an essential first step in determining whether an employer has acted reasonably during an investigation, dismissal or appeal procedure. As immigration lawyers know, that process is not always straightforward. It requires fair investigation and a reasonable time to assess the situation.
- That leads to another problem in this case. In my view, employers should not generally take knee-jerk decisions to dismiss a person who is unable to immediately evidence their ‘right to work’. Any advantage gained by the employer in protecting itself from possible complicity in illegal working will often be outweighed by the risk of disgruntled employees bringing claims of unfair dismissal and/or discrimination. A prompt and fair investigation includes giving employees sufficient opportunity to provide proof of their right to work. The Domino’s case highlights to futility and potential cost of an employer’s decision to dismiss before the facts have been properly established (and before the basis of the individual’s immigration status has been understood).
- Undocumented migrants should not have to race against the clock in order to avoid losing their jobs and livelihoods. There are many reasons why a person may not be able to immediately produce an official document to show their right to work, even if they have the right in the first place. Take, for example, the many EEA nationals living in the UK who are not required to obtain such a document, or persons born British (or who have acquired an entitlement to be registered as British) but who have never obtained a passport to prove it (or been able to afford the astronomical Home Office fees for a registration application).
- In recent months, I’ve had to stop Home Office Presenting Officers in the Immigration Tribunal from criticising a client for providing payslips despite being ‘self-employed’ and explain that the term ‘self-employed’ is in fact not a term of article and governs a wide range of different working relationships defined by statute. Similarly, I’ve been asked by employers and employees to advise during right to work investigations. These complex issues are easily misunderstood in practice, and these difficulties are compounded by the atmosphere of fear and anxiety that May’s hostile environment has created.
So, ‘Boring’? Perhaps, yes.
But vitally important for both employers and individuals, especially as Brexit looms.
[1] In particular, see the provisions in sections 15 and 21 of the Immigration, Asylum and Nationality Act 2006, and section 24B of the Immigration Act 1971.
[2] For a contrasting case where the EAT found that an employer had unlawfully failed to pay wages to a spouse of an EEA national who was temporarily dismissed when she could not prove that her ‘permanent residence’ document was still valid, see Okuoimose v City Facilities Management (UK) UKEAT/0192/11/DA. In Okuimose, it was irrelevant that the employer acted reasonably or genuinely believed she was working illegally – EU law meant that she was entitled to work and therefore the employer’s refusal to pay her wages during suspension was unlawful.