In the recent case of Okedina v Chikale, the Court of Appeal (CA) ruled that an employment contract was enforceable despite immigration rules being breached.
Ms Chikale, a Malawian national worked as a live-in domestic worker for Mrs Okedina in the UK, after Mrs Okedina had obtained a six months visa for her. Following the expiry of Ms Chikale’s visa, she continued to work for Mrs Okedina in the UK. Mrs Okedina kept Ms Chikale’s passport and applied for a visa extension on the false basis that she was a family member. However, this application and a subsequent appeal were refused. Ms Chikale was not aware of the situation as Mrs Okedina had hidden it from her.
Ms Chikale was summarily dismissed after asking for more money as she worked extremely long hours for a very low wage. She brought claims of unfair and wrongful dismissal, unlawful deduction from wages, unpaid holiday pay, breach of the Working Time Regulations 1998, failure to provide written particulars of employment and itemised payslips, and race discrimination.
Mrs Okedina sought to argue that Ms Chikale’s claims could not be heard as her employment contract was illegal, due to her leave to remain having expired.
The employment tribunal and the Employment Appeal Tribunal (EAT) rejected Mrs Okedina’s illegality defence. As a result, Mrs Okedina appealed to the Court of Appeal (CA).
The CA held that the purpose of the Immigration, Asylum and Nationality Act 2006 was not to punish those working illegally, but to impose penalties on those who employed people who were. As the employment tribunal had initially found that Mrs Chikale had not known that her visa had expired and had not been renewed, the CA found that there was no reason to deny her a remedy and as a result, held that her employment contract was enforceable. If the court had decided that her contract was unenforceable, they acknowledged that they would be depriving an innocent employee of pursuing a contractual claim against her employer.
An employer should always be aware of an employee’s right to remain, because despite an employment contract being performed illegally, this case demonstrates that the courts may hold that the contract is enforceable.
Please contact us if you would like more information about the issues raised in this article or any other aspect of employment law on 029 2034 5511 or at firstname.lastname@example.org.