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Immigration, Illegality, and Contracts of Employment - An EAT Decision

on Friday, 02 February 2018.

The recent case of Okedina v Chikale considered an employer's defence of illegality. The illegality principle says that courts and tribunals are not able to help a claimant where the claim is based on an illegal act.

In this case, the employer argued that the employee's contract of employment was illegal - and therefore could not be enforced.

The Facts

Ms Chikale was employed as a domestic worker by Ms Okedina. The contract was first entered into in Malawi. Ms Okedina asked Ms Chikale to come to the UK in order to perform domestic duties and to care for Ms Okedina's family. Ms Chikale was granted an initial six months visa. When the visa expired, Ms Chikale's employment was not terminated and she continued to work in breach of the immigration rules. Ms Chikale was not told that her visa had expired and that she was working in the UK without permission to do so.

After being summarily dismissed, Ms Chikale brought various claims against her employer including for unfair dismissal, failure to pay the National Minimum Wage and failure to provide paid annual leave.

The Employment Tribunal (ET) rejected the defence of illegality. The ET found that the contract had been entered into in Malawi where Ms Chikale had initially started working for Ms Okedina. In the ET's view, whilst the contract had been illegally performed after the six month visa expired, Ms Chikale had not herself knowingly participated in that illegality. On this basis it was held that the employment contract was not illegal at its inception as argued by the employer.

The Decision at the EAT

The employer appealed to the EAT, asserting that, contrary to immigration law, neither party had believed the contract to be a temporary one. As such the employer argued that the contract was void at its inception. This was, however, rejected by the EAT which found that the contract had in fact been entered into in Malawi where Ms Chikale had first worked for the employer's parents.

The EAT found that even if this had not been the case and that a new contract had been formed in the UK, that contract would still not be rendered void given that Ms Chikale had been granted immigration status permitting her to work as a domestic worker for six months. As that contract was terminable on six months' notice, it had not been illegal at the time that it was signed.

Furthermore, the EAT also found that it would not be said that the parties have knowingly entered into arrangements which have to their knowledge represented the facts of the employment relationship to be other than that they really were.

Best Practice

The circumstances of this case were unusual and employers may be unlikely to rely on the illegality defence on a regular basis. Employers using migrant workers should ensure that they understand when their employees' visas expire to avoid a situation arising where the continued employment of that individual is in breach of the immigration rules. Knowingly employing someone who does not have permission to work in the UK is a criminal act.

For more information please contact Mark Stevens in our Employment Law team on 0117 314 5401.

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