In case of Chikale v Okedina, The Employment Appeals Tribunal (EAT) held that an illegal contract is not automatically unenforceable.
Ms Chikale had been brought to the UK, on a domestic worker visa, by Ms Okedina. Ms Chikale was required to work seven days a week for two years, for which she was paid a total of only £3,300. The Claimant's visa had expired but she continued to work in breach of immigration rules, having been falsely advised by Ms Okedina that the relevant steps were being taken to extend her visa.
Ms Chikale asked for more money and Ms Okedina summarily dismissed her. She then brought claims against the Respondent. Ms Okedina tried to rely on the defence of illegality, arguing that the contract with Ms Chikale was unenforceable from the point at which the visa had expired. The EAT, however, concluded that Ms Chikale was unaware of the fact that she was illegally working and rejected the defence of illegality. MS Okedina appealed.
The Court of Appeal rejected the appeal. Firstly, it concluded that the legislation was not aimed at employees working illegally, but imposed penalties on employers who were employing such individuals. As Ms Chikale had no knowledge that she was working illegally, she should not be denied remedies under this defence. Secondly, it concluded that Ms Okedina could not rely on the defence of common law illegality, as Ms Chikale had not knowingly participated in the illegal performance of her contract. Therefore there was no reason to deny her a remedy.
It is important to note that the facts of this case are exceptional, as in most cases involving illegal workers, the individuals are likely to have knowledge of their visa status. This case does however demonstrate the Courts willingness to take a pragmatic approach to protect vulnerable employees.
Originally published September 4, 2019
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.