There’s recently been a case that involved an employee’s right to work in the UK. The employee who worked as a delivery driver, married a European National and acquired time limited leave to work here. That expired, at which point he had a right to apply for a document evidencing his right to permanent residence, which would continue his right to work. So long as he applied by the date when his time limited leave was due to expire, he was entitled to work whilst the application was being processed. His employer reminded him then that they required evidence that he had made an application in time. He sent them an email, but they couldn’t open the attachments. The employer was so concerned about exposure to criminal civil penalties if it employed the person illegally, that they sent him a notice of dismissal with no right of appeal.
After he had been dismissed, the employee put forward satisfactory evidence of his right to work, and the employer offered to reengage him as a new starter with no continuity and no back-pay for the period between dismissal and reengagement, so the employee complained of unfair dismissal to the tribunal. I am sure you are as mystified as I am about the employer’s actions/logic here!
The tribunal was satisfied that the employer genuinely believed at the relevant time that to employ the individual was prohibited by statute, which amounted to some other substantial reason for dismissal. Given the lack of evidence the employer had of entitlement to work in the UK, it was a reasonable position for them to have taken. For that reason, the case hinged on the issue of the appeal. The tribunal judge found that there was nothing to ‘appeal against’ as the employer was unable to ‘backfill’ a belief that it couldn’t have had at the relevant time, the judge therefore felt that he couldn’t say it was unfair to fail to offer the right of appeal, dismissing the claim.
The employee appealed and the universal application of the right of appeal, as recommended by the ACAS Code of Practice on disciplinary and grievance procedures was noted. It was also noted that in Polkey v AE Dayton Services Ltd 1998 the law lords had envisaged exceptional cases where an appeal would be futile and could not alter the decision to dismiss, however, this was not such a case. If the employer had permitted an appeal and given the employee the opportunity to supply the documents demonstrating he had made his application in time, perhaps he could have got solicitors confirmation of this, or it could have even made an enquiry of the employment checking service as they had the relevant number from the employee. At this point, there was no reason why the employee would not have been reinstated, as the employer wouldn’t have been committing any criminal offence under immigration legislation.
Whilst it can seem a pain to offer the right of appeal, it illustrates what might appear to be obvious circumstances often aren’t, and an appeal gives the opportunity to cure faults with the original decision. There is also a value in more than one person having been involved, so that if you are ever challenged at tribunal you can put forward the original decision maker and then somebody else who reviewed the decision to get away from allegations of bias.
An appeal can also be a useful way to flush out issues so for example, we would still offer the right of appeal when dismissing somebody with less than two years’ service, even though they are less likely to be to bring an unfair dismissal claim, having to fit themselves within one of the exceptions to the two-year rule. If this person is going to allege some kind of discrimination, or perhaps whistleblowing, the appeal may well flush out these issues and give you an opportunity to hit them head-on, rather than let them fester for the tribunal later.