A case of this nature was recently heard at the Court of Appeal. The employers were Malawian nationals, Okedina (O), who brought Chikale (C) to the U.K. from Malawi in July 2013 to work for them as a live-in domestic worker.    She had, from September 2010 to that point, worked for O as a domestic servant in Malawi.  At the time of the ET hearing, she was 28 and had a 14 year old son who lived with her parents in Malawi.

At the outset of the arrangement, O applied for a visa on behalf of C to allow her to come to the UK.  However in doing so, O provided false information.  The visa was granted in May 2013 on a 6 month basis. However, C remained in the U.K. once that visa  expired in November 2013. She was advised by O that they were holding onto her passport and that they were taking steps to ensure that her visa would be extended.   Again, O applied for a visa, this time an EEA family permit in C's name. Again false information was provided, namely that C was a family member. That application was refused. An appeal was submitted, unsuccessfully.  C did not know anything about this process and she continued to work for O until June 2015.  During this period she received very little pay, and indeed for the entire period of her employment in the UK, which involved working 7 day weeks with long hours, she received only £3,300.  C was dismissed by O without notice.   C tried to advance Employment Tribunal claims alleging unfair dismissal,  unlawful deduction of wages and holiday pay.  She also alleged race discrimination, but that failed at the ET as it found that her treatment was due to her precarious immigration status rather than race.

One option for an employer in seeking to defend their position is to mount a defence that the contract is unenforceable and  consequently incapable of supporting any contract based claims on the basis that the contract is either illegal or has been illegally performed.   This is the route that O took in seeking to defend the case.

The Employment Tribunal did not agree with this approach and O's defence was rejected.   An appeal was submitted by O to the Employment Appeals Tribunal but again, that was unsuccessful.  

The matter then came before the Court of Appeal. It had to consider the two potential forms of illegality: statutory illegality and common law illegality. Sections 15 and 21 of the Asylum and Nationality Act 2016 (the "Act") provide for civil and criminal penalties to be imposed on anyone who employs a person who does not have sufficient right to work

In considering this matter the Court of  Appeal found it to be noteworthy that the sections in the Act did not actually prevent employment from taking place, but provided for penalties on the part of the employer if employment took place in those circumstances.   

The Court of Appeal had to consider whether the intention behind this legislation was to create a scenario where someone without the correct permissions to work in the UK would be prevented from enforcing the contract of employment.   The view reached was that this was not what had been intended under the Act.   Had it done so, the result would have been to allow unscrupulous employers to avoid contractual claims raised by their employees.   This ruled out the employers' attempt to get round the claims using this statutory illegality defence.  

However, the Court of Appeal also had to consider common law illegality.  The view reached was that whilst the contract had been performed illegally since November 2013, C had not knowingly participated in any illegal performance of her contract.   O had not been open and honest with C in terms of the immigration process and the information that was being provided to the Home Office on C's behalf. As a consequence they found that the contract had not been rendered unenforceable at common law either. 

This Judgement offers protection to some of the most vulnerable workers in society and is a warning to unscrupulous employers that they may still face Employment Tribunal claims in these circumstances.   However, based on this Judgement, if the employee in question is entirely aware that they are working illegally, and continue to knowingly participate in that illegal relationship, the prospects of their being able to successfully rely on the contract for the purposes of pursuing an ET claim will diminish.  The Judgement also highlights the importance of employers following a proper dismissal process in right to work cases, and this has something we have previously discussed.