The Court of Appeal has found that an employer cannot rely on a breach of the immigration rules to argue that an employment contract is unenforceable.
In the recent decision in Okedina v. Chikale the employee, Ms Chikale, worked for the employer Mrs Okedina, as a domestic live-in worker. Both were Malawian nationals, and Ms Chikale originally worked under a six month visa. She continued to work for long hours at very low pay when the visa expired, that fact having been hidden from her by her employer. When she was summarily dismissed Ms Chikale brought various tribunal claims including claims for unfair dismissal and unlawful deductions from wages. Mrs Okedina argued that the employee’s claims could not be heard given that she was working illegally because her leave to remain had expired.
The Court of Appeal rejected this argument. It was found that the legislation dealing with illegal working was not directed at those working illegally, but instead imposed penalties on those who employed people who were. It was not Parliament’s intention to deprive an innocent employee of all contractual remedies against their employer. Ms Chikale had not knowingly participated in any illegality and so should not be denied a remedy.