Afzal v East London Pizza Ltd (trading as Dominos Pizza)

The absence of an internal appeal is not automatically cured by the employer's apprehension about immigration penalties. Rather, an appeal must be regarded as necessary unless it would have been futile at the time of dismissal.

Where an employee in fact had a continuing right to work, an appeal could enable the employer to be satisfied of that right and to reinstate without legal risk.

Thus an employer who dismisses for suspected lack of right to work must consider that a post‑dismissal production of evidence may render reinstatement lawful and make an appeal meaningful.

The claimant, employed since 2009, was dismissed on 12 August 2016 for an employer's belief that he had no right to work. The employer had received late evidence of an in‑time immigration application but could not read the attachments. The Employment Tribunal held dismissal fair because, it said, there was "nothing to appeal against". The claimant appealed to the Employment Appeal Tribunal on the sole ground that the ET erred in law by accepting that no appeal was necessary.

The central question was whether an internal appeal would have been futile because the employer could not, with hindsight, re‑construct a belief it did not have at the time of dismissal. The EAT considered the interaction of unfair dismissal law with the employer's criminal and civil exposure under the Immigration, Asylum and Nationality Act 2006 and the Immigration (Restrictions on Employment) Order 2007.

1. The appeal is allowed. The Employment Judge erred in law in concluding there was "nothing to appeal against" because the focus was wrongly placed on the employer's belief as at the date of expiry rather than on whether an appeal could establish that the employee in fact had a continuing right to work.
2. Where, as here, the employee in fact had a continuing entitlement to work, providing an appeal might lead to the employer being satisfied of that entitlement. If so, the employer could rescind the dismissal and reinstate without incurring criminal liability or civil penalty under the relevant immigration provisions. The ET therefore erred in treating any post‑expiry evidence as irrelevant to the fairness assessment (see paras [31]; [58]).
3. The correct legal test for procedural fairness is that in section 98(4) of the Employment Rights Act 1996, applied in light of Polkey. An employer may dispense with usual procedural steps only where it acted reasonably in believing that the steps would have been futile at the time of dismissal. Futility must be assessed by reference to whether the steps could have altered the decision.
4. On the facts found by the Employment Judge, reinstatement was not impossible as a matter of law. The ET should have considered whether an appeal process could have produced evidence that the employee had an unbroken right to work and whether, on that factual basis, reinstatement would have followed (see paras [45]–[58]).
5. The EAT will not substitute its own factual findings in place of the Tribunal's. Applying the test in [2014] ICR 920 (Jafri v Lincoln College), the correct course is to remit the complaint for rehearing by the same Employment Judge to determine unfair dismissal, Polkey, contributory fault and remedy. Costs and remedy issues are left to that hearing.
6. Practical guidance: it is good employment relations practice in cases involving immigration status to offer an appeal. The appeal permits calm re‑examination of documentary and other evidence and avoids injustices where an employer has mistakenly disbelieved an employee's continuing right to work.

• Employment Appeal Tribunal: Appeal allowed; remitted to the same Employment Judge for rehearing of unfair dismissal, Polkey, contributory fault and remedy (13 April 2018).
• Employment Tribunal (London (East)): Employment Judge Foxwell — dismissed the claimant's complaint of unfair dismissal (original hearing and reasons reproduced in the judgment).