In Okedina v Chikale, the Court of Appeal has held that an employer could not rely on the doctrine of illegality to defend employment claims brought by a former employee who no longer had the right to work for them.
Broadly, the doctrine of illegality states that a party to an illegal contract cannot bring claims arising under that contract against the other party to it.
The Immigration, Asylum and Nationality Act 2006 (IANA) provides for civil and criminal penalties for employers found to be employing someone who does not have the right to carry out that work for the employer in the UK.
The claimant, a Malawian national, was brought to the UK by her employer, Mrs Okedina, as a live-in domestic worker. Mrs Okedina took total control of the immigration process (even taking possession of the claimant’s passport) and arranged a six-month domestic worker visa for her. Once the visa expired, Mrs Okedina sought an extension, under the false pretence that the claimant was a family member. The application failed.
The claimant was informed by Mrs Okedina that steps were being taken to extend her visa and the claimant was unaware that she no longer had the right to remain in the UK. She continued to work for Mrs Okedina for over a year without the right to work in the UK, until she was summarily dismissed having asked for a pay rise.
The claimant brought various employment claims against Mrs Okedina, which were largely successful at tribunal. However, Mrs Okedina appealed, arguing that such claims arose out of the employment contract and that the doctrine of illegality meant that such claims could not be brought.
The Court of Appeal rejected Mrs Okedina’s appeal.
It held that IANA does not expressly prohibit employing someone without the right to work in the UK – instead, it merely provides penalties for doing so. Nor could it be said that, even with no such express prohibition, the intention of IANA is to make an employment contract unenforceable if the individual does not have the right to work. It is in the interests of public policy that individuals in such circumstances should have some legal recourse against their employer and interpreting IANA in such a way that would prevent this, would be unjust.
It did, however, indicate that the position may have been different had the claimant known that she no longer had the right to work in the UK, but nevertheless continued doing so. In such circumstances, the doctrine of illegality may have prevented her bringing any claims.
It is rare for an employee to be totally unaware that they do not have the right to work in the UK. It is much more common for the employee to be more involved in the process of obtaining a visa and will more likely maintain their own records. In such circumstances, a defence of illegality it more likely to succeed if such right to work expires or is revoked.
The case is also a useful reminder for employers of the ramifications of employing illegal workers. Employers now face:
- a civil penalty of up to £20,000 per illegal worker; and
- criminal sanctions, comprising of up to 5 years in prison and/or an unlimited fine – if they know or have reasonable cause to believe the person they are employing does not have the right to carry out the work in the UK.
In the current landscape, it is more important than ever that employers take the necessary steps to ensure that all individuals employed by them have the relevant permission to work.