Okedina v Chikale UKEAT/0152/17/RN; UKEAT/0153/17/RN

Appeal against a ruling that the Claimant's contract of employment was not tainted by illegality and therefore she could bring claims against her employer. Appeal dismissed.

The Claimant was employed by the Respondent in Malawi to look after her parents. They both then came to the UK and the Claimant continued to work directly as a domestic worker for the Respondent. However, the Claimant's immigration status meant that after six months it was in breach of Immigration Rules for her to continue working. She was dismissed and brought claims against the Respondent, the Respondent arguing that as the contract of employment was tainted by illegality the Claimant was not entitled to bring the claims. The ET disagreed, finding that this was a case falling within the third category identified in Hall v Woolston Hall Leisure Ltd [2001] ICR 99 CA and the Claimant had not knowingly participated in the illegal performance of her contract. The Respondent appealed.

The EAT dismissed the appeal. The ET had not erred in its approach to illegality in this case. If the contract of employment was that entered into in Malawi, there could be no suggestion that it had been illegal at inception. Even if the parties had entered into a new contract upon the Claimant's coming to the UK in 2013, the written terms made clear that too was not illegal at inception: the Claimant's employment being terminable on six weeks' notice and thus, on its face, giving rise to no breach of the immigration provisions at the outset. In any event, the immigration provisions relied on by the Respondent did not explicitly or implicitly prohibit the Claimant's contract of employment.


Published: 17/01/2018 09:59

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