Illegality and unfair dismissal rights 




The Court of Appeal has given the following guidance on the impact of illegality on unfair dismissal claims (Hall v Woolston Hall Leisure Limited [2001] ICR 99):


• a contract will be unenforceable from the outset by either party due to illegality if it was entered into with the intention of committing an illegal act, or if it is expressly or impliedly barred by legislation; and 


• a contract can become unenforceable by a party if it was lawful when made but is illegally performed and that party knowingly participated in the illegal performance. 


The doctrine of illegality was updated in two important Supreme Court rulings: Hounga v Allen [2014] UKSC 47 and Patel v Mirza [2016] UKSC 42. These cases establish that in unfair dismissal claims involving the exploitation of vulnerable or trafficked workers, in general, the public policy of preventing trafficking and exploitation is likely to trump other policy considerations, such as the public policy of denying access to the court system to workers who break the law (by working without the correct immigration status). See also Chapter 7, page 210. 


Employees have been allowed to bring unfair dismissal claims in cases where:



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




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



• the employee was uncertain or mistaken as to their true employment status, incorrectly self-identifying as self-employed (Grace v BF Components Limited [2005] UKEAT 0006/05/2809); and


• the employee (a mistreated domestic migrant worker) relied on her employer’s assurance that her visa was being lawfully taken care of (Okedina v Chikale [2018] UKEAT/0152/17/RN).