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Illegality - Colen v Cebrian

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The Court of Appeal has, today, handed down its judgment in Colen & anor. v Cebrian (UK) Ltd.

The case deals with whether a tribunal has jurisdiction to hear unfair and wrongful dismissal claims where the contract of employment is tainted with illegality.

Most of the three judgments (Waller, Carnwath and Peter Gibson LJJ) deal with whether the tribunal was entitled to make the findings of fact that it did. There is a useful summary of existing caselaw at paras. 21-23 of Waller LJ's judgment. But two points of interest emerge from the case:

(1) the burden of proof is firmly on the employer to establish illegality, not on the employee to establish he is entitled to bring a claim;

(2) there is nothing illegal or objectionable in an employer agreeing that remuneration shall be paid jointly to husband and wife in respect of services provided by them as a team, notwithstanding that the precise division of remuneration may not be agreed and may fluctuate from time to time to minimise tax exposure.