Failure to strike the right balance could prove costly and time-consuming for employers, as shown in a recent case before the Employment Appeal Tribunal.
It involved Mr Fahim Afzal, who came to the UK from his native Pakistan after marrying an EU national in 2011. He started working as a delivery driver, and later a trainee manager for East London Pizza – a franchise of Domino’s Pizza.
He had been granted time-limited leave to work until 12 August 2016, by which time he would have been in the UK for five years.
On 15 July 2016, he was entitled to apply for permanent residence and had the right to continue working while his application was being considered.
The company contacted Mr Afzal on 6 June and 15 July to remind him to provide evidence showing he had applied to extend his right to work.
However, he didn’t reply until 12 August with an email to his line manager at 4.28pm. The line manager told Mr Afzal he was unable open the two attachments on the email, but Mr Afzal didn’t respond.
The company dismissed Mr Afzal as they had received no evidence of his right to work. He wasn’t given the opportunity to appeal.
The Employment Tribunal dismissed Mr Afzal’s claim for unfair dismissal, saying there “was nothing to appeal against” given that the employer didn’t believe he had made the necessary application to extend his leave.
However, the Employment Appeal Tribunal ruled in his favour in relation to his right to have the company to consider his appeal. It ruled that while the initial decision to dismiss Mr Afzal was justified, a company appeal process could have brought enough evidence to light to show that Mr Afzal had applied for his extension.
Judge David Richardson said: “The appeal process affords an opportunity for this kind of case, which can result in real feelings of injustice, to be looked at again.”
The case was sent back to the Employment Tribunal for reconsideration.
For further advice on any of the issues raised in this article, or for employment law advice more generally, please contact JPP Law on 020 3468 3064 or email [email protected]
