The Claimant was obliged to make an in-time application by 12 August to remain in the UK legally and the Respondent asked for evidence that he had done so. The Claimant emailed documentation very late on 12 August but the Respondent could not open the documents and therefore, because they were concerned to avoid any risk to the Respondent from continuing to employ the Claimant illegally, posted notice of dismissal to him on 12 August. No right of appeal was given. The ET found that the dismissal was fair and on the grounds of some other substantial reason, namely that the Respondent genuinely believed that his employment was prohibited by statute. On the right of appeal issue, the ET said that there was nothing to appeal against and therefore it was not unfair not to offer a right to appeal. The Claimant appealed.

The EAT allowed the appeal. The Claimant at all material times had a right to work; the requisite evidence of that right could have been established during an internal appeal process; and if it had been the Respondent was not prohibited by any law, criminal or civil, from reinstating him.