Can an employer rely on a breach of the immigration rules to argue that an employment contract is unenforceable?
No held the Court of Appeal in Okedina v Chikale.
Ms Chikale was a Malawian national who was summarily dismissed as Mrs Okedina's live-in housemaid having been paid a derisory sum for the work done. Mrs Okedina argued that the claims of unfair dismissal and unlawful deduction from wages could not succeed as Ms Chikale was working illegally because her leave to remain had expired.
The Court of Appeal held that Immigration Asylum and Nationality Act 2006 was not directed at those working illegally but instead imposed penalties on those who employed people who were. As the employment tribunal had found that Ms Chikale had not knowingly participated in any illegality, there was no reason to deny her a remedy.
The case is worth reading by those interested for its detailed consideration of the illegality defences.
Thanks to Nicholas Kennan of Cornwall Street Barristers for preparing this case summary.