More haste, less speed
Take care in establishing an employee’s right to work.
Establishing an individual’s right to work in the UK, both on joining and thereafter, is one of the most important duties of employers. Employing an individual who does not have the right to work can result in a substantial civil penalty of up to £20,000 (per individual), and doing so knowingly is a criminal offence. However, a recent case before the Employment Appeal Tribunal (EAT) underlines the importance of dealing with right to work issues in a considered and reasonable manner.
The case concerned Mr Afzal, who worked for Domino’s Pizza. Mr Afzal had a time-limited right to work in the UK, due to expire on 12 August 2016. To continue to work in the UK after this date Mr Afzal could make an application for permanent residence. Provided he applied before 12 August 2016, Mr Afzal could keep working while his application was considered. Dominos asked Mr Afzal to provide evidence of an ‘in-time’ application but did not receive a satisfactory response so dismissed him on 12 August 2016, without any process and without a right of appeal. Mr Afzal had in fact submitted the relevant application and brought a claim for unfair dismissal.
While the EAT found that Dominos was justified in dismissing Mr Afzal (for ‘some other substantial reason’) because of its genuine belief that he was no longer entitled to work in the UK, this belief was ultimately mistaken and Dominos should have offered a right of appeal to allow more time to establish the facts. Dominos could then have made enquiries with the relevant authorities or contacted Mr Afzal’s solicitor, and would have been able to reinstate Mr Afzal on receipt of appropriate evidence and/or reassurances without facing any civil penalty or committing a criminal offence. The EAT therefore allowed the Appeal and remitted the case back to the employment judge for reconsideration as to whether the dismissal was fair.
The case shows that in situations of this kind which call for a quick decision, employers should leave themselves room for manoeuvre by offering a right of appeal. Failure to do so will make it difficult to demonstrate that a decision to dismiss and the process followed was fair in all the circumstances and leaves the business exposed to claims.
More broadly, the fundamentals of dealing with right to work matters remain the same. Employers should complete right to work checks on all new joiners, follow-up as appropriate where the right to work is time-limited, and keep appropriate records of all checks carried out to establish the statutory excuse from civil penalties.