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An illegal employee can have her discrimination case heard by an employment tribunal

Employees who are working illegally, e.g. without a necessary work permit or without paying tax, cannot bring unfair dismissal claims if their employment is terminated. However, a recent case shows that the position is different in relation to discrimination claims.

The Employment Appeal Tribunal has held that a Sri Lankan employee who did not have a work permit may still be able to succeed in her claims of sexual harassment against her employer. When she agreed to work for the employers in question, she made it clear that she needed a valid work permit and could not therefore start work until the company sponsored her.

However, she began working for the company before the work permit had been obtained and claimed she was seriously sexually assaulted before starting work and also subjected to serious sexual harassment after she started working for the company. During this time, she was working under an illegal contract as she did not have permission to work in the UK.

The employment tribunal firstly decided it had no jurisdiction to hear the case as the contract was illegal. The employee appealed. The Employment Appeal Tribunal (EAT) then considered whether she could bring a claim of sexual harassment for acts occurring during a period when she was working illegally. The judge referred to an earlier case which set out the principles to be applied in discrimination cases where the claimant is working under an illegal contract.

The principles suggested that just because a contract is illegal, this doesn’t mean a claim cannot succeed. Tribunals would need to consider whether the claim was so clearly connected to the claimants’ illegal conduct that they could not award them compensation without appearing to condone their illegal behaviour.

In this case, the EAT found that the harassment was not completely bound up with working under the illegal contract, therefore the woman should not be prevented from succeeding in her sexual harassment claims solely as a result of the illegal contract. The case was remitted to the tribunal for reconsideration.

If you’ve suffered discrimination at work and would like to talk to Employment Law specialists please contact Ashley Hunt, Vaishali Thakerar or Carrie-Ann Randall at Lawson-West on 0116 212 1000.

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