In employment tribunals, employers sometimes rely on the defence of ‘illegality’. They argue that, because a contract of employment is illegal, the employee doesn’t have the right to pursue a claim. Gethin Bennett takes a look at this defence which arose during a recent case.

When considering the defence of ‘illegality’, a tribunal considers the parties’ knowledge of, and participation in, the illegal act. This was demonstrated in the case of Okedina v Chikale.

Ms Chikale was initially employed in Malawi as a domestic worker for her employer. She then moved to the UK in 2013 on a 6-month visa, where she continued to work for them. Her immigration status meant that any work beyond this six-month period would be illegal.

She continued to work beyond the six months until June 2015, when she was dismissed without notice. When she lodged numerous claims at the employment tribunal, her employer argued that the contract was illegal due to a breach of immigration laws. They argued that due to her contract being illegal, she didn’t have the right to pursue a claim.

The EAT agreed with the original tribunal’s decision. Knowledge of the illegality was required. The EAT ruled that Ms Chikale had not knowingly worked illegally. She had trusted her employer, who assured her that the visa had been ‘taken care of’.

The EAT also commented that whether the employment contract relied upon was the one entered into in Malawi, or the one entered into when Ms Chikale came to the UK, neither contract was illegal at the point it was entered into, and this was key.

Where does this leave us?

It’s clear that tribunals will take public policy factors into account when assessing the limits of illegality as a defence. The EAT, in this case, placed great weight on previous cases where there was a need for parties to knowingly enter into an illegal contract. There was no such knowledge to be found in Ms Chikale’s case. Employers should, therefore, take caution when attempting to rely on this already limited defence.

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