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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.

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