Mr Afzal was employed by Dominos Pizza. since October 2009 He was obliged to make an in-time application by 12 August to remain in the UK legally and Dominos Pizza asked for evidence that he had done so. Mr Afzal emailed documentation very late on 12 August but his employer could not open the documents and therefore, because they were concerned to avoid any risk from continuing to employ him illegally, posted notice of dismissal to him on 12 August. No right of appeal was given.
The Employment Tribunal found that the dismissal was fair and on the grounds of some other substantial reason, namely that Dominos Pizza genuinely believed that his employment was prohibited by statute. It had been reasonable for Dominos to hold this belief (given the lack of evidence) and for it to act decisively on 12 August (given its concern about penalties). On the right of appeal issue, the ET said that there was nothing to appeal against since the relevant question was whether Dominos had reasonable grounds to believe that Mr Afzal had made a valid application by 12 August and since the date of 12 August had passed, it was not unfair not to offer a right to appeal. Mr Afzal appealed the ET decision.
The EAT allowed the appeal. If Dominos Pizza allowed Mr Afzal to appeal the decision to dismiss, Mr Afzal could have provided documents demonstrating his in-time application, they could have accepted assurance from Mr Afzal’s solicitor (as it had done in another case) or could have obtained a notice from the Home Office Employer Checking Service. He then could have been reinstated.