Dismissing Illegal Migrants: Recent Case Law

Two recent cases of the Employment Appeal Tribunal provide further guidance for employers on the legal implications of dismissing illegal migrant workers.

Can illegal workers pursue discrimination claims?

The first case, Allen v. Hounga and Another, looked at whether illegal workers can pursue discrimination claims against their employer.

This case involved a Nigerian lady who was employed by a couple to work as their live-in housekeeper in the UK. In order to obtain a visa, at the couple's instigation, she provided false information (including a false name).

After her visa expired she remained in the UK illegally and continued to work for the them. When she was eventually dismissed she raised claims of unfair dismissal and race discrimination.

It is an established principle that if a contract of employment is illegal (for example, if the employee entered the UK to work in breach of immigration law), that employee may be prevented from relying on any contractual and statutory rights.

As a matter of public policy it has long been the case that employees working under an illegal contract of employment cannot pursue an unfair dismissal claim. In this case that principle was upheld on the basis that, to allow the Claimant to pursue her claim of unfair dismissal, would enforce the illegality.

That same illegality did not, however, prevent the employee from pursuing a race discrimination claim. It was held that a previous case, in which the employee lied about his immigration status to obtain employment and was then barred from pursuing a discrimination claim, did not establish a general principle that illegal workers cannot bring discrimination claims. The difference in that case was that the employer was innocent and did not know that the employee was working illegally.

What does this mean for employers?

It remains the case that employees working under illegal contracts of employment cannot pursue unfair dismissal claims.

In terms of discrimination claims, the Tribunal drew a distinction between a situation where the employee knew he was illegally working in the UK but the employer did not and the situation where both parties had colluded to create an illegal employment relationship. This suggests that only where an employer is unaware of the illegality will the employee be barred from pursuing a discrimination claim. The approach taken by the Courts is likely to turn on the facts of each case.

This case also underlines the importance of...