02 March 2012 #Employment
In Zarkasi v Anandita, Ms Zarkasi 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 and brought a number of employment claims in the Employment Tribunal (“the ET”).
It was held by the ET 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 Ms Zarkasi’s employment illegal and her contract and statutory rights dependent on the contract were unenforceable.
Ms Zarkasi also argued that she had been the victim of human trafficking and that the ET should, in the spirit of the European Convention on Action against Trafficking in Human Beings, provide her with compensation from perpetrators. The ET rejected this argument on the basis that it had no jurisdiction or powers in that regard. The Employment Appeal Tribunal (“the EAT”) agreed with the ET on both points.
The fact that an employment contract is illegal will not necessarily prevent the employee from pursuing a discrimination claim under the Equality Act 2010 and Miss Zarkasi was permitted to pursue a race discrimination claim. However, the tribunal rejected this claim finding that Ms Zarkasi’s treatment was because she was in the UK illegally and without a work permit and not because she was Indonesian. The EAT again upheld the ET`s decision.