Illegality and unfair dismissal rights

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Someone who has no right to work in the UK may be able to rely on their employment contract to claim unfair dismissal. This will depend on the extent to which they participated in the illegality (Okedina v Chikale [2019] EWCA Civ 1393).

When deciding whether to allow claimants to enforce their rights when there has been illegality, ETs can take account of the public policy of preventing trafficking and exploitation (Hounga v Allen [2014] UKSC 47).

Someone who lies to the employer, falsely claiming that they have the right to work in the UK, is unlikely to be allowed to claim unfair dismissal because they actively participated in the illegality.

Unfair dismissal claims have been allowed where:

• the employer refused requests by employees to pay their tax and National Insurance via PAYE (Warp Technologies Holdings v Nunoo and Vermani EAT 0527/04);

• employees were paid occasional sums cash-in-hand (Annandale Engineering v Samson [1994] IRLR 59); and

• an employee was mistaken in thinking they were self-employed (Grace v BF Components Limited [2005] UKEAT 0006/05).

• an employee knowingly paid no tax or national insurance to HMRC for the first seven years of her employment, but regularised her tax position for the remaining three years. The basic award for unfair dismissal did not include the seven years during which her employment contract was illegal (Robinson v Sheikh Khalid Bin Saqr al Qasimi [2020] UKEAT 0106/19).