Gordons Employment Update – 10 July 2018

Unfair Dismissal and the Right to an Appeal

The Employment Appeal Tribunal in the recent case of Afzal v East London Pizza t/a Dominos Pizza considered the right to appeal of a Claimant who was dismissed following failure to provide evidence of his right to work in the UK and was given no right of appeal against the decision.

The original  Employment Tribunal heard that Mr Afzal had limited leave to remain and work in the UK until 12 August 2016. He was able to apply for indefinite leave to remain on or after 12 July 2016. His employer, East London Pizza, asked him for evidence that he had applied, as this would provide him with the right to continue working in the UK until his application was determined.

Mr Afzal provided his evidence on 12 August 2016. The employer could not, however, open the attachments provided and therefore had no evidence of his continuing right to work. They dismissed Mr Afzal, with no right of appeal being afforded. Unbeknownst to the employer Mr Afzal had indeed made an application in time and remained entitled to work in the UK.

The Employment Tribunal decided that it was not unfair to dismiss the Mr Afzal without affording him the opportunity to appeal because, against the immigration background, there was “nothing to appeal against”.

The EAT found  that despite the fact that an employer is liable to prosecution for  employing a person who has no right to work, the dismissal was in fact unfair as Mr Afzal was not provided with the opportunity to appeal.

The EAT held  that whilst the employer  was justified in dismissing Mr Afzal because he had not provided the evidence as requested  (it had a genuine  belief that his employment was prohibited by statute) its belief was in fact, wrong. The EAT outlined that, if an appeal had been offered, and had Mr Afzal produced the evidence which confirmed his entitlement to work, the employer  could immediately have rescinded the dismissal without fear of prosecution or penalty.  There was never a time when Mr Afzal was not entitled to work.

Comment 

This case highlights the importance of offering a dismissed employee an appeal via an appropriate process. When deciding if a dismissal is unfair, a Tribunal will assess the whole process of the dismissal, including any right of appeal.  The offer of an appeal will be required in all but the most exceptional circumstances.

Disability Discrimination – Managing Sickness Absence

In the case of DL Insurance Services Ltd v O’Connor  the EAT dismissed the appeal brought by the employer, DL  Insurance, against the finding that Mrs O’Connor had been discriminated against on the grounds of her disability.

DL Insurance issued a written warning and removed entitlement to enhanced sick pay to a disabled employee after she accrued 60 days sickness absence over a 12 month period, which was 6 times more than the ‘trigger point’ within their sickness absence policy.

Upholding the decision of the Employment Tribunal, the EAT found that the employer had not been justified in giving her a written warning for her sickness absences. Whilst they had a legitimate aim of seeking to improve the attendance levels of the employee, issuing a written warning was not a proportionate means of doing so. Key to the decision was the failure by DL Insurance to follow company policy to refer the employee to occupational health before issuing a written warning.

Comment 

This case underlines the need for employers to demonstrate care when dealing with sickness absences of disabled employees. It is important to consider the objective justification for decisions and to ensure that there is sufficient evidence to support the decision. The EAT noted that had medical evidence been obtained which supported the decision this may have provided evidence to demonstrate that the employer’s actions were indeed a proportionate means of achieving their legitimate aim. This case does not mean that it is never possible for an employer to manage  a disabled employee’s sickness absence.

Football’s Coming Home? – ACAS Guidance

With the World Cup now well underway, ACAS has published guidance for employers to assist with issues which may arise in the workplace during the tournament.

The guidance  provides recommendations around flexible approaches to working practices, such as allowing employees to watch or listen to key matches, ensuring social media and internet fair usage polices are clear for those wanting to keep updated and the need to take a fair and consistent approach with all employees if any additional benefits are granted during the World Cup.  No mention of how to deal with penalty shoot outs however….

The full guidance can be found here.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team.

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