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Illegality and Immigration Restrictions

01 November 2011 #Employment

Okuoimose v City Facilities illustrated that in an employee’s claim for non payment of contractual wages, there is no defence for an employer to state they did have reasonable knowledge that the employee’s contract was illegal but feared they would be exposed to penalties.  The EAT says the question was whether the contract was illegal, not whether it was thought to be illegal.
The claimant was married to an EEA national.  The Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) permitted that she was entitled to reside and work in the UK.  However the Home Office stamp in her passport confirmed this had expired.  A confirmatory letter was sent to the UK Border Agency and in the meantime she was suspended from pay, until a response was received. The claimant made a claim for unlawful deductions from pay over the suspension period under, s13 of the Employment Rights Act 1996.  The employment judge held the contract was illegal and unenforceable during that time.
The EAT overturned this decision.  The claimant was entitled to work in the UK at all times, which was not dependant on obtaining a new stamp in her passport.  It was therefore irrelevant whether the employer was behaving reasonably or that it was worried about penalties.  Subsequently, the Claimant won her case.

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