Can a Claimant who is illegally working in the UK bring a claim for sexual harassment against her unlawful employers?
Yes, holds in the EAT in Wijesundera v Heathrow Logistics.
Ms Wijesundera, a Sri Lankan national, informed the Respondents that she required a work permit. She commenced employment before this was obtained and knew that she was working unlawfully. The permit was obtained one year later. She was subsequently dismissed and brought a claim for sexual harassment, allegations of which occurred during the period of unlawful employment.
The EAT considered whether Ms Wijesundera could bring a claim for sexual harassment even though she was working illegally.
In making its decision, the EAT maintained that this was not a case like Vakante v Governing Body of Addey and Stanhope School, in which detriments complained of entirely depended on there being a contract of employment and upon its terms.
The EAT applied the principles of Hall v Woolston Hall and held that the claim for sexual harassment, save for Ms Wijesundera’s dismissal, was not so inextricably bound up with the contract of employment or the illegality as to be defeated by the defence. This means employers relying on the normally straightforward illegality to end a contract now have to be conscious of this context and ensure that background is also fully considered before dismissal to understand the full picture in terms of risk.