This case is about domestic workers and asks:
Can a contract tainted by illegality prevent an employee from bringing an employment tribunal claim?
Ms Okedina, the Respondent, was a Malawian national who lived and worked in the UK. Ms Chikale, the Claimant, had worked for the Respondent in Malawi looking after the Respondent’s parents. The Respondent wanted to bring the Claimant over to the UK as a live-in domestic worker and applied for a visa, using false information to complete the application.
The Claimant was granted a 6-month visa and moved over to the UK to work for the Respondent. The Respondent took away the Claimant’s passport and as such she remained in the UK upon the expiry of her visa. The Respondent told the Claimant they would sort out her visa status.
The Respondent made further false applications for further visas for the Claimant. This included stating the Claimant was a family member. The Respondent went as far on lodging an immigration tribunal claim in the Claimant’s name, forging her signature to do so. This was rejected and the Claimant continued to work for the Respondent.
The Claimant worked seven days a week with long daily hours and was paid a paltry £3,300 per annum. When the Claimant requested a pay rise she was summarily dismissed and evicted from the Respondent’s home.
The Claimant initiated claims for unfair dismissal, wrongful dismissal, unlawful deduction from wages claim (for failure to pay NMW and holiday pay), failure to provide particulars of employment and failure to provide itemised payslips. The Respondent defended the claim on the grounds that the contract had been performed illegally due to the Claimant’s expired visa. As such the Claimant was unable to enforce the contract.
The ET allowed the claims. It ordered the Respondent pay the Claimant over £72,000.00 in losses, of which £64,000.00 was for unlawful deductions! The Respondent appealed to both the EAT and, after that was rejected, to the Court of Appeal.
The CoA held that as the Claimant was unaware that her visa was gained illegally and subsequently not been renewed, the Respondent could not rely on illegality as a means to defeat the claim. It also held that it was not against the Immigration Asylum and Nationality Act 2006 for either party to claim under the agreement.
The takeaway point:
No, if the party bringing the claim is not aware of the illegality and is not prevented by statute then they can bring a claim. This is despite the fact the contract in itself was being performed illegally.