01 March 2012

Can a worker enforce employment rights dependent on a contract of employment if the contract was illegal from the outset?

Daniel Barnett’s Employment Law Bulletin reports:

The Employment Appeal Tribunal (EAT) (Langstaff P) has ruled against the claimant in the case of Zarkasi v Anandita.

The claimant was an Indonesian domestic worker recruited from Indonesia to work for a family in the UK. To enter the UK she obtained an identity card, passport and visa from a passport office in Jakarta using a false identity. Ultimately she left her employer in the UK and brought a number of employment claims dependent on a contract of employment.

It was held by an employment tribunal that she had freely and voluntarily participated in an arrangement to enter the UK by pretending to be someone else in order to work for her employer. That made the contract unlawful as being proscribed by law when it was first entered into. As such it was unenforceable, as were any statutory rights dependent on it. Notwithstanding this, the claimant asserted she had been the victim of human trafficking and that the tribunal should, in the spirit of the European Convention on Action against Trafficking in Human Beings, provide her with a remedy. The tribunal rejected this - it had no jurisdiction or powers in that regard. The EAT agreed with the tribunal on both points.

Nor could her claim for race discrimination succeed. Her treatment was not because she was Indonesian, but because she was in the UK illegally and without a work permit.