The Employment Appeal Tribunal (EAT) has ruled that an employer cannot rely upon a defence of illegality where the employer argues the contract is rendered void from inception.
In Okedina v Chikale, the claimant was brought to the UK as a domestic worker. However, her immigration status meant that after six months she was working illegally. After two years she brought claims including unfair dismissal.
The respondent argued that the employment contract was illegal because it was in breach of immigration law. This was rejected because it found that the claimant did not have knowledge of the illegality.
The respondent appealed on the basis that the contract was unlawful when it was formed as neither party believed the work to be temporary. As such, it submitted that the contract was void from inception.
Writing in Daniel Barnett’s Employment Law Bulletin, Barrister Caroline Jennings of No 5 Chambers, said: ‘The EAT rejected the appeal. The contract was terminable on six weeks’ notice and as such was not in breach of immigration law. Further, the legislation relied upon did not invalidate the contract, as even if it provided for a potential criminal offence, it said nothing about the validity of the contract entered into by the employer.’
The EAT also noted that, when considering the broader purpose of legislation (in prohibiting illegal conduct), there would have to be consideration of public policy.
The case considered the ruling in Hall v Woolston Hall Leisure Ltd.
