An illegal employee can have her discrimination case heard by an employment tribunal
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1st May 2014
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.
Written by by Vaishali
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Article Published/Sorted/Amended on Scopulus 2014-05-16 11:18:35 in Legal Articles