Can a worker rely on an illegal employment contract for protection?
In the case of Zarkasi v Anandita, a claimant sought to bring a number of claims dependant on a contract of employment which was deemed unlawful from the outset by the Employment Tribunal (ET). The claimant obtained a passport and visa using a false identity, yet upon leaving her job in the UK she brought a claim based on the rights within the contract of employment.
The contact was deemed unlawful on the basis that the individual freely participated in arrangements to enter the UK pretending to be someone else so that she could work for the employer. This made the contract unlawful when it was entered into.
The question in this scenario was whether an unlawful contract can be relied upon to give legal rights to a party to it. The ET ruled that an illegal contract cannot be enforced, as well as any statutory rights that are dependent on that contract.
It may be an important consideration that the individual was a party to the illegality and it would be interesting to see how this policy would work where an individual did not voluntarily participate in the deception and knowingly entered into an unlawful contract.
The claim for race discrimination also failed, with the ET deciding that the individual’s treatment was not because she was Indonesian, but because she was illegally in the UK without a valid work permit.
This case therefore reaffirms the logical position that one cannot rely upon the law where rights that are allegedly breached are contained within an unlawful agreement.
Author: Ricky Coleman
Adrian, a highly experienced lawyer, founded Lawspeed in 1997. He is responsible for developing our extensive portfolio of products and services, including the widely used Lawspeed contract templates. Adrian is an expert on “recruitment law” and specialises in contracts, regulatory compliance, employment status and dispute handling. He is chair of the trade body the Association of Recruitment Consultancies, the only lawyer lead recruitment trade body in the UK. Adrian and his co-director Ravi devised Standards in Recruitment as a vehicle for helping drive up standards and compliance in the industry.
Adrian is our lead in discussions with the government over regulatory evolution. Apart from assisting with client support, Adrian’s primary role is research and development into methods of business delivery, our latest service Proterms being his most recent project. Adrian heads our IR35 lawyers team.