Nwaki v Tube Lines Ltd

An Employment Tribunal determines the reason for dismissal from the facts or beliefs that caused the employer to terminate employment. It is not confined by the statutory label used in the response or submissions. A different statutory classification will not justify appellate intervention where it is only a matter of label and has caused no material prejudice or significant difference in the conduct of the case.

Where the evidence establishes that continued employment would contravene a duty or restriction imposed by enactment, dismissal may fall within section 98(2)(d) of the Employment Rights Act 1996. A pending judicial review which is outside the statutory immigration appeal process does not itself establish a continuing right to work.

The claimant was dismissed in July 2012 after he could not demonstrate a right to work in the United Kingdom. The employer had sought confirmation from the Border Agency twice and had received no confirmation of entitlement based on an outstanding application.

The Employment Tribunal held that there was no extant immigration application or valid statutory appeal, that the claimant had no right to work, and that the dismissal was fair under section 98(2)(d) of the Employment Rights Act 1996. The claimant appealed, contending that the employer had pleaded only some other substantial reason and that the Tribunal had wrongly relied on section 98(2)(d).

The central issue was whether the Tribunal’s use of section 98(2)(d), rather than the pleaded statutory label, disclosed an error of law or procedural unfairness.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the dismissal fell within section 98(2)(d) of the Employment Rights Act 1996.
2. The reason for dismissal is the facts or beliefs which caused the employer to terminate employment. The Tribunal was entitled to determine the applicable statutory category. It was not bound by the employer’s description of the reason as some other substantial reason.
3. The distinction between reliance on some other substantial reason and section 98(2)(d) was, on these facts, one of label rather than substance. The respondent’s case and evidence addressed both whether it reasonably believed that the claimant lacked a right to work and whether he in fact lacked that right. The claimant’s immigration status was manifestly in issue. There was no identified additional evidence, cross-examination, or line of enquiry that would have been material had section 98(2)(d) been expressly pleaded.
4. Applying the approach in Hannan v TNT-IPEC UK Ltd [1986] IRLR 165, an unpleaded ground may warrant intervention where it changes the facts and substance of the case and causes significant prejudice. It does not do so where the difference is merely classificatory. No prejudice was established here.
5. The Tribunal was entitled to find that, when dismissed, the claimant had no extant application or valid statutory immigration appeal preserving his right to work. A judicial review did not form part of that statutory appeal process. The later outcome of the claimant’s immigration proceedings and any Border Agency error did not undermine that finding or render the dismissal unfair.

• Employment Appeal Tribunal — dismissed the claimant’s appeal and upheld the Employment Tribunal’s conclusion that the dismissal was fair under section 98(2)(d) of the Employment Rights Act 1996.
• Employment Tribunal — following a hearing on 3 September 2013, in a decision sent on 20 September 2013, held that the claimant had no right to work in the United Kingdom and that his dismissal was fair.
• Employment Appeal Tribunal, Rule 3(10) hearing — permitted the appeal to proceed on grounds concerning the statutory reason for dismissal and the Tribunal’s treatment of the claimant’s immigration application.