Can foreign nationals who work illegally in this country rely on their employment contracts in bringing proceedings before an Employment Tribunal (ET)? In a case which could come to have more and more relevance if Brexit does come to pass at the end of the month, the Court of Appeal has tackled the question. Its decision signals a judicial clampdown on the exploitation of overseas workers.

The case concerned a foreign live-in domestic worker whose employer had provided false information in order to obtain a six-month visa for her to come to Britain. After the visa expired, she continued in her employment in breach of immigration control. Her employer retained her passport and, after forging her signature, unsuccessfully applied to extend the visa, again on a false basis.

During the period of almost two years in which she worked for the employer, she was required to work very long hours, seven days a week, and received only £3,300 in pay. After she asked for more money, she was summarily dismissed and ejected from the employer’s home.

Proceedings were subsequently launched on her behalf alleging, amongst other things, unfair and wrongful dismissal, unpaid holiday pay and breaches of the National Minimum Wage Regulations 1999 and the Working Time Regulations 1998. All her complaints, save one of discrimination, were upheld by an ET, which ordered the employer to pay her £72,271 in damages. That decision was later confirmed by the Employment Appeal Tribunal.

In challenging that outcome, the employer argued that, due to her inability to work legally in the UK, the Immigration, Asylum and Nationality Act 2006 rendered the worker’s employment contract illegal and unenforceable by either party. As the worker’s complaints had been made either under that contract or arising out of it, they should have been dismissed.

In rejecting the appeal, however, the Court noted the well-recognised problem of vulnerable foreign workers being trafficked or otherwise brought to this country for exploitation. In many instances, as the facts of the present case illustrated, they are duped by their employers into believing that their presence and employment in the UK is legitimate.

The Court noted that the Act is targeted at employers and does not state that no person shall be a party to an employment contract where the employee does not have the appropriate immigration status or that such a contract should be unenforceable by either party. Penalties imposed by the Act for entering into such contracts fall upon employers alone.

Whilst acknowledging the undoubted public interest in preventing foreign nationals from working in Britain illegally, the Court ruled that, in the circumstances of the case, there was no public policy requirement to construe the Act in such a way as to deprive the innocent worker of all contractual remedies against her employer.

This is a timely reminder that employees may still be able to enforce their rights against an employer, even when they are working illegally. Employers who fail to pay, or even dismiss, such an employee with no right to work may face a raft of claims, on top of questions from the Border Force.

For advice on dealing with issues relating to the right to work, please contact Emily Greswell.