The legal starting point is that an individual should not be allowed to profit from their unlawful activity and in the employment context, this means that under normal circumstances illegal workers cannot claim protection from unfair dismissal and or assert any contractual rights where the employment contract itself is prohibited by law.
However, employers need to be mindful that all individuals in the UK regardless of immigration status are entitled to basic human rights under the Human Rights Act 1998 and protection against discrimination.
Illegal employment
The above was addressed by the Supreme Court in the case of Hounga v Allen 2014 where a Nigerian national at the age of 14 whilst living in Nigeria, accepted employment from Mr and Mrs Allen as a housekeeper in the UK in return for board , schooling and £50 per month salary but in collusion with Mr and Mrs Allen, she obtained a Nigerian passport and a six months UK visitor’s Visa using false identity documents. She knew it was illegal for her to live and work in the UK but she stayed in the Alan’s family home performing housework, looking after their children for 18 months during which time she suffered serious physical abuse and was told that if found by the police she would be sent to prison because she was an illegal migrant.
Hounga was then dismissed when Mrs Allen became angry that the children had not eaten supper. She attacked and beat Hounga, poured water over her and evicted her from the house.
Hounga’s claim for unfair dismissal, breach of contract and unpaid wages failed.
However, she also claimed that her dismissal and her treatment she suffered constituted discrimination on grounds of her nationality under Relations Act 1976 section 4(2) c that now is subsumed in section 39(2)(c) of the 2010 Act.
The Supreme Court found in Hounga’s favour in the context of race discrimination and although public policy dictated that a person should not be able to profit from their illegal conduct, but in this case, Hounga’s illegal employment provided no more than the context in which she was abused by Mrs Allen and subsequently dismissed.
Their Lordship considered that the public interest in protecting vulnerable illegal immigrants outweighed the public interest in applying the defence of illegality, but the award of compensation did not allow her to profit from her wrongdoing in performing work illegally but compensated her for injury to feelings following the abusive nature of her dismissal.
The case above supported the argument that where the illegal worker colluded with her employers to work illegally in the UK then bar discrimination issues, there still be no claim for unfair dismissal and or breach of contract but what happens where the worker is unaware that the employment arrangement is illegal.
The decision in a recent Court of Appeal of Okedina vs Chikale 2019 does suggest that a claim could be made even if the setup is illegal but unknown to the worker.
Ms Chikale, a Malawian national was brought into the UK in July 2013 to work for Mrs Okedina as a live-in domestic worker on a six months visa. Ms Chikale continued to work in the UK after her six month visa had expired. The employer kept Ms Chikale’s passport and informed her that the necessary steps are being taken for her visa to be extended. Ms Chikale continued to work for her employer until June 2015. During her employment, she was required to work very long hours with low pay. When Ms Chikale asked for more money, she was summarily dismissed.
The employee brought claims to the employment tribunal for unfair and wrongful dismissal; unlawful deductions from wages, by reference both to the terms of her contract and to the National Minimum Wage Regulations 1999; unpaid holiday pay; breaches of the Working Time Regulations 1998; failure to provide written particulars and itemised payslips; and race discrimination.
The employer tried to defend the claim by saying the contract of employment was prohibited by immigration legislation and therefore, void from the outset. The tribunal decided that the contract was not prohibited by legislation and that Ms Chikale did not knowingly participate in illegal working.
The employer submitted her appeal to the Employment Appeal Tribunal (EAT) on the point of whether the effect of sections 15 and 21 of the Immigration, Asylum and Nationality Act 2006 (IANA) is to prevent an employee succeeding in claims arising out of a contract of employment at a time when the employee’s leave to remain in the UK has expired.
The EAT upheld the original decision. Mrs Okedina was ordered to pay Ms Chikale £72,271.20. Of this amount, £64,000 was in respect of unlawful deductions from wages.
Right to work in the UK
Many employers are aware of their obligations to conduct right to work checks to reduce risks of employing someone illegally. This case has highlighted the importance of conducting checks and outlined the risks employers will continue to face when employing an illegal worker.
Employing someone without the right to conduct work in the UK, may result in a civil penalty being imposed up to a maximum amount of £20,000 per individual. An employer can be excused from paying a civil penalty if they can show they have carried out the required right to work checks. They have the option to conduct either a manual right to work check or an online right to work check in order to establish a statutory excuse against a civil penalty.
It is important to note that an employer commits a criminal offence if it employs someone knowing they are an illegal worker, as seen in the Okedina vs Chikale case. Employers may either receive an unlimited fine and/or imprisonment for a period of six months.
If an employment contract becomes illegal after it has begun, the employee may be dismissed for the fair reason of statutory restriction with an appeal. However, employers must show evidence of having conducted a right to work check.
If your company requires a full HR Audit to ensure you are compliant in all areas of employment including recruitment procedures or if you require any further guidance on right to work checks, please contact us today by calling 0333 240 7208.
