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Employment law: The right to appeal

27 August 2018 by Paul McFarlane

Employment law: The right to appeal - read more

A reminder that employees are entitled to appeal in ‘right to work’ cases, and an update on the gig economy and gender pay gap reporting

It is unlawful to employ an individual who is ‘subject to immigration control’. This captures anyone who does not have valid leave to enter or remain in the UK, or has valid leave but is not permitted to work.

Allowing illegal working can have serious consequences, for example criminal liability or hefty civil penalties of up to £20,000. Employers must therefore be extremely vigilant, while also ensuring that employees are treated fairly and given full opportunity to demonstrate their ‘right to work’.

The Employment Appeal Tribunal (EAT) recently decided in Afzal v East London Pizza Ltd t/a Dominos Pizza that a claimant who was dismissed after he failed to produce evidence of his right to work in the UK should have been allowed the right to appeal.

Mr Afzal, who was from Pakistan, worked at East London Pizza from October 2009 until August 2016. He had the right to work in the UK until 12 August 2016. By then he would have been in the UK for five years and entitled to apply to the Home Office for permanent residence. Evidence of this application would have allowed him to continue working.

“Employers must be extremely vigilant, while also ensuring that employees are treated fairly and given full opportunity to demonstrate their ‘right to work’”

The HR team wrote to Mr Afzal on two occasions to remind him that he must provide evidence of his application to extend his right to work. On 12 August 2016,

Mr Afzal sent an email to his employer with evidence of his application, but the two attachments could not be opened. Mr Afzal was informed that the evidence could not be opened, but did not resend the information. By the end of that day, no evidence had been seen that Mr Afzal still had a right to work and his employer dismissed him to avoid civil and criminal penalties. The employer’s dismissal letter failed to offer him the right to an appeal.

The EAT held that the initial decision to dismiss Mr Afzal was justified, as Mr Afzal’s employer was not satisfied that he had made an application to extend his leave. However, the failure to offer him an appeal meant that he had been unfairly dismissed.

If there had been an appeal process, Mr Afzal might potentially have provided his employer with the evidence they needed and the contract could have been revived ‘without fear of prosecution or penalty.’

This case is an important reminder that the whole of the dismissal process, including an appeal, is relevant to the question of fairness.

This applies just as much to ‘right to work’ dismissals as to dismissals for other reasons, such as conduct or poor performance. Offering an appeal may be particularly important where, as in this case, the employee alleges the full facts of the matter were not established at the dismissal stage.

Even if you strongly suspect that the employee will be unable to produce further evidence of their right to work at appeal stage, allowing them a second chance to explain their situation and produce further documents will protect your organisation’s position and substantially reduce the risk of a successful unfair dismissal claim.

Gig economy update

Hermes couriers are workers and not self-employed, according to an employment tribunal ruling. This follows a group of 65 Hermes couriers taking the delivery service to the tribunal. In Mrs E Leyland & others v Hermes Parcelnet Ltd, the tribunal found that the couriers were not independent contractors, as Hermes argued, but instead were workers and therefore entitled to rights such as the national living wage and holiday pay.

This decision is in line with a series of cases, including the recent Supreme Court decision in the Pimlico Plumbers case (which Lydia Newman discussed in last month’s issue), where the courts and tribunals have questioned whether, in reality, those involved in the gig economy are self-employed.

Speaking after the ruling, a spokesperson for Hermes told The Independent: ‘We will carefully review the tribunal’s decision, but we are likely to appeal it given that it goes against previous decisions, our understanding of the witness evidence and what we believe the law to be.’

This case illustrates the need for urgent reform of this area of law to provide more clarity on the status of those in the ‘gig economy’. Government consultation exercises on this issue closed in June and we now await the government’s proposals for reform, which it is hoped, Brexit permitting, will be in the next Queen’s speech.

Reporting the gender pay gap

Regulations establishing mandatory gender pay gap reporting for companies with over 250 employees came into force in April 2017, with the deadline for businesses to produce their first figures falling one year later, in April 2018.

Although the reporting regime has inarguably turned a spotlight on pay disparity and has prompted employers to put in place action plans to close the gap, there has been speculation that the standard of reporting so far leaves much to be desired.

For example, almost one thousand organisations have reported a median gender pay gap of zero, meaning that average pay for men women is exactly the same. This is statistically highly unlikely, even in the most equality-driven business.

“There has been speculation that the standard of reporting so far leaves much to be desired”

Other common anomalies include recording a pay gap of more than 100% or providing an explanatory narrative that does not tally with the published figures.

It is unclear whether limited understanding of these technically complex regulations and government guidance, or a degree of more cynical manipulation, lies behind this misreporting.

By contrast, a recent government study highlights the aspects of reporting that are working well and explores the clearest and most accessible ways to present gender pay gap data. Research by the Government Equalities Office found that when gender pay gap figures are presented visually (for example as stacks of coins) or expressed in terms of money (rather than percentages) they were easier to interpret for members of the public.

Benchmarking data, contrasting a company’s performance with others in a similar sector or field, also assisted interpretation and helped members of the public distinguish between high and low performing companies.

Although the study is aimed at helping the government to present information most effectively on its website, it also provides useful insight for employers looking to ‘show off’ a very small pay disparity to staff and the general public or, conversely, to manage a more difficult message.

Paul McFarlane is partner in employment, pensions and immigration at Weightmans LLP

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