The Supreme Court ruled last week that an employee’s illegal status does not preclude them from bringing a discrimination claim and warned employers that they should not think that discrimination against vulnerable illegal employers will go unchecked.
The case related to a Nigerian woman who entered the UK illegally in 2007 and then secured a six-month visitor’s visa from the immigration authorities with the assistance of her employer.
However, she was dismissed the following year and made a claim for racial harassment against her employer but the claim was rejected by the Employment Tribunal and the Employment Appeal Tribunal.
She then tried to go to the Court of Appeal but that would not hear her case because of the illegal nature of her contract of employment, so finally she went to the Supreme Court.
Judges there concluded that the woman’s illegal conduct was not inextricably linked to the alleged racial harassment and have now ordered that her claim for racial harassment be referred back to the Tribunal to establish whether or not she has grounds for her complaint.
They added that the illegal contract was simply the context in which the employer treated the woman and felt that, for public policy reasons, to reject her claim on the basis that her contract was illegal could instil a false belief in employers that they could use this as a defence.
The implication of the ruling is that employers should be careful of the role of public policy when using the defence of illegality, as if the courts believe that this defence compromises the integrity of the legal system by encouraging unscrupulous employers to enter into illegal contracts of employment, they will be reluctant to allow it to succeed.