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Is a Claimant prevented from bringing claims by a historic period of illegality in the performance of a contract?

No, held the EAT in Robinson v Al Qasimi.

The Claimant worked for the Respondent from March 2007 to May 2017. Up to July 2014, the Claimant was paid gross, having agreed to be responsible for paying tax on her earnings, which she failed to do. From July 2014, the Respondent made deductions from payments to cover income tax and NI, putting them aside whilst the Claimant's employment status (and responsibility for paying tax) remained in dispute.

The tribunal held that the Claimant's participation in the illegal performance of the contract by not paying tax up to July 2014 made the contract unenforceable for illegality, and so rejected her claims of wrongful and unfair dismissal, otherwise they would have been upheld. Other claims relating to whistleblowing failed on the facts.

The EAT held that the tribunal erred in its approach to illegality: from July 2014 the Claimant had not participated in illegality, so there was no justifiable basis for the tribunal to refuse to allow the claims for wrongful and unfair dismissal, including statutory notice for 10 weeks for 10 years' service (rather than 2 full years from the end of the illegality). The tribunal had refused to make a basic award for unfair dismissal, which was permissible only in respect of the duration of the illegality. A claim for interim relief with possibly unique facts was overturned on appeal.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.