Okedina v Chikale – Employee in Breach of Immigration Rules Successful in Tribunal Claim

March 27, 2018

The Employment Appeal Tribunal (“EAT”) recently dismissed the appeal from an employer against an Employment Tribunal (“ET”) ruling of unfair dismissal from an employee who was working in breach of the Immigration Rules.

Facts of the case

The employee was a Malawian domestic worker who was employed by a self-employed business woman (also Malawian) originally in Malawi to look after her parents and subsequently in the UK in her home to cook, clean and look after the children. The employer applied for and obtained a domestic worker visa which legally permitted the employee to work in the UK for up to 6 months. The employment contract stated that the contract could be terminated with 6 weeks’ notice. At the end of the six months the employer applied for an EEA family permit providing false information to attempt to regularise the employee’s status but this was unsuccessful. The employer had assured the employee that the documents had been sent to the Home Office and that her visa would be renewed. The employee continued to work for nearly another two years. At this point when she asked for an increase in pay and holiday pay this provoked an argument and she was told to leave the house. The employee subsequently made claims for unfair and wrongful dismissal and unauthorised deductions, breach of the Working Time Regulations and a failure to provide written particulars of employment and an itemised wage slip. The employer argued that she was not able to bring these claims as the employment contract was illegal being in breach of immigration law.

ET Decision

In examining the illegality point the ET reviewed the case of Hall V Woolston Hall Leisure Ltd in which it was said that a contract can be illegal at the outset if entered into with the intention of committing an illegal act or where prohibited by statute or it can be lawful when made but illegally performed with the employee knowingly participating in the illegal performance. The ET found that the contract was not illegal from the outset and even though it was subsequently illegally performed this was without the knowledge of the employee. Furthermore it was found that the defence raised in this case was contrary to public policy.

EAT Decision

The EAT decided that the ET has not erred in its approach. While there was some discussion on whether or not the contract which the employee worked under in Malawi was separate to the contract in the UK the EAT found that this did not matter. The UK contract was capable of being terminated with six weeks’ notice and so did not run contrary to immigration rules from the outset. Furthermore the EAT was satisfied that the employee had not participated in the illegal performance of the contract.

Comment

This case demonstrates that just because an employee is working illegally does not mean that there is no prospect of an employer facing an employment tribunal claim. If the contract was legal from the outset and any subsequent illegality is not the fault of the employee then the employer will still be liable. While the facts of the case were exceptional employers should be aware when conducting right to work checks that sometimes the right will only be valid for a certain amount of time. The statutory excuse provided in these cases will be time limited and employers must have the procedures in place to conduct a follow up check. Employers should not bury their heads in the sand or worse, become implicit in the illegal working. This case shows that as well as risking Home Office fines of up to £20,000 per employee the employer could potentially also face unfair dismissal and/or discrimination cases as well.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Immigration Law Team at Cleaver Fulton Rankin for further advice or information.

Nathan Campbell, Solicitor, Immigration Law Team, Cleaver Fulton Rankin, Solicitors.