In an important decision, recently reviewed by Vina Madhavji, the Court of Appeal has ruled that a domestic servant who continued to work in Britain in breach of immigration rules could rely on her contract of employment in bringing Employment Tribunal proceedings against her employer (Okedina v Chikale).
Ms Chikale had initially been employed by Ms Okedina as a domestic worker to look after her parents in Malawi. However, Ms Okedina subsequently arranged for her to enter the UK so that she could work for her directly in her home. Her visa entitled her to work in Britain for six months, but her employment continued for almost two years in circumstances that could have exposed her employer to criminal sanctions. She was not told that her visa had expired and that it was in breach of the immigration rules for her to continue working.
Throughout her employment, Ms Chikale was required to work seven days a week, for very long hours, and was paid only some £3,300. When she asked for more money, she was dismissed and ejected from the house.
Ms Chikale launched Employment Tribunal proceedings against Ms Okedina alleging, amongst other things, unfair and wrongful dismissal and failure to pay the National Minimum Wage or holiday pay. The Employment Tribunal permitted her case to proceed to a full hearing after rejecting Ms Okedina’s arguments that her employment contract was illegal, and thus void.
The Employment Tribunal found that Ms Chikale had trusted her employer, who had assured her that her visa had been taken care of, and had not knowingly participated in any breach of immigration rules. Ms Okedina was ordered to pay her £72,271.20 in compensation, of which some £64,000 was in respect of unlawful deductions from wages.
Ms Okedina appealed against the Tribunal’s decision, but the Employment Appeal Tribunal found that the Employment Tribunal had not erred in its reasoning on the illegality issue.
In ruling on Ms Okedina’s challenge to that outcome, 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 and have not knowingly participated in any illegality.
The Court also noted that the Immigration, Asylum and Nationality Act 2006 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 there was, in the circumstances of the case, 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.