Illegality

Employees should be very wary if asked to participate in any sort of scheme which involves illegality, for example:

• being paid cash in hand;

• colluding with the employer to falsely represent wages and expenses; or

• falsely identifying to HMRC as self-employed, knowing they are really an employee (as opposed to making an honest mistake about employment status).

An employee who actively participates in an illegal contract is likely to be barred from claiming unfair dismissal. This is not a denial of the right to a fair trial under Article 6 of the European Convention on Human Rights (Soteriou v Ultrachem [2004] IRLR 870).

Employees with no legal right to work in the UK cannot claim unfair dismissal. However, illegal immigrants who suffer discrimination or harassment may be able to bring a claim for discriminatory dismissal relying on rights under the Equality Act 2010 (Hounga v Allen [2014] UKSC 47).