0370 270 6000

Illegality no defence

26 February 2014

The Employment Appeal Tribunal has recently determined that illegal workers can, in the right circumstances, bring claims of harassment against their employer.

In this particular case, a migrant worker with no valid work permit was found to have been sexually assaulted during her (unlawful) employment. She was subsequently dismissed and brought a claim for harassment in the employment tribunal. Despite the parties both knowing she had no legal right to work, it was held that there was not a sufficient link between the harassment and her illegal employment, meaning that the employer could not defend the claim on grounds of “illegality” (one of the potentially fair reasons for dismissal).

This case is a reminder that the defence of illegality cannot be blindly relied on by employers when considering whether to dismiss illegal workers. Employers will have to carefully consider the reasons for the dismissal and the background leading up to it to assess the risk of a successful claim.

Related opinions

New guidance on best practice around reasonable adjustments

The new guidance is impressive; it’s well written and the examples of solutions and workarounds being used in law firms are invaluable, as it shows disabled people what is possible and practical.

View blog

Government plans to ratify convention on ending violence and harassment in the workplace

Ratifying C190 would mean additional obligations for employers to prevent & address harassment & violence in the world of work.

View blog

Taxi driver’s rental and uniform costs deductible for NMW purposes

Augustine v Data Cars Ltd the Employment Appeal Tribunal highlights importance of ensuring pay for National Minimum Wage purposes is carefully calculated.

View blog

Fire and rehire

The new Acas guidance is a timely reminder for employers on how to approach effecting contractual changes.

View blog

Mailing list sign up

Select which mailings you would like to receive from us.

Sign up