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

When assessing dismissal fairness under section 98(4) of the Employment Rights Act 1996, an employer's failure to offer an appeal is ordinarily material. The absence of an appeal is fair only where, at dismissal, the employer could reasonably regard the usual procedure as exceptionally futile.

An appeal is not futile merely because an employer lacked contemporaneous evidence of an employee's existing right to work. If an appeal could establish that the employee was throughout entitled to work, the employer may rescind the dismissal and reinstate without criminal or civil immigration liability. The assessment must distinguish an actual lack of entitlement from a lack of evidence of entitlement.

The claimant, a pizza-delivery employer's acting assistant manager, was dismissed after his time-limited immigration documentation expired. Although he had made an in-time application which preserved his right to work, the employer had not received readable evidence of it before dismissal.

The Employment Tribunal dismissed his unfair-dismissal claim. It held that the employer reasonably believed employment was prohibited and that there was nothing to appeal against because the employer could not retrospectively acquire the belief it lacked at the expiry date.

The claimant appealed solely on whether dismissal could be fair despite the absence of an internal appeal.

1. Appeal allowed and remitted. The Employment Judge erred in law by treating the possible appeal as confined to whether the employer had sufficient evidence on 12 August. Fairness under section 98(4) of the Employment Rights Act 1996 required consideration of whether an appeal could usefully establish the employee's actual continuing entitlement to work.

2. An appeal is normally an important element of a fair process. Under [1988] 1 AC 344, procedural steps may be omitted only where the employer, at dismissal, reasonably considers in the exceptional circumstances that they would be futile and could not alter its decision. The tribunal must judge the whole process rather than ask retrospectively whether correct procedure would have changed the outcome.

3. The employer was entitled urgently to dismiss on the information then available. However, its belief that employment was prohibited was factually wrong: the claimant had continuously been entitled to work. If an appeal had produced satisfactory evidence of that entitlement, whether from the claimant, a solicitor or the Employer Checking Service, the employer could rescind dismissal and reinstate him.

4. Sections 21(1) and 15(1) of the Immigration, Asylum and Nationality Act 2006 imposed criminal and civil consequences only where the employee was in fact disqualified from employment. They did not prohibit reinstatement after later production of evidence showing an existing right to work. The appeal could therefore not be assumed futile.

5. The Appeal Tribunal could not substitute a finding of unfair dismissal because that would require its own evaluative assessment of the merits. Applying [2014] ICR 920, the issue was remitted to the same Employment Judge, together with issues of remedy, Polkey and contributory fault.

• Employment Appeal Tribunal: appeal allowed and the unfair-dismissal issue remitted to the same Employment Judge.
• Employment Tribunal: the claimant's unfair-dismissal complaint was dismissed. The Tribunal held that no appeal was required because there was nothing to appeal against.