The importance of a right to appeal
The right to appeal is an important part of a fair dismissal process. Is it fair to deny the right of appeal where the employer mistakenly but reasonably believes that the employee no longer has the right to work in the UK?
Mr Afzal had the right to work in the UK. His current permission was due to expire. He tried to send his employer, Dominos Pizza, evidence to show permission had been extended. The company couldn’t open the attachments. They were worried about fines and criminal prosecution for employing someone illegally, so they dismissed Mr Afzal without notice. He was given no right to appeal. Mr Afzal brought an unfair dismissal claim.
The employment tribunal found Mr Afzal had been fairly dismissed. The judge said that there was nothing to appeal against because the employer reasonably believed that the claimant's employment was unlawful at the time of dismissal. An appeal would not have made a difference to that reasonable belief. Mr Afzal appealed to the Employment Appeal Tribunal.
The EAT said the tribunal was wrong. If Mr Afzal had appealed, he could have presented the relevant evidence. Alternatively, Dominos could have sought confirmation of his immigration status before the appeal hearing. Mr Afzal could then have been reinstated without fear of penalty or prosecution. This was not a case like Polkey where appeal would be futile – quite the opposite. Mr Afzal had been unfairly dismissed.
Whether a dismissal is unfair will be judged on the whole process, including the right of appeal. The EAT stated that “there is no doubt that in modern employment relations practice the provision of appeal is virtually universal”. Failure to provide the right to appeal will very rarely be fair.