Friday 1 August 2014

Employment rights for illegal workers


A recent decision of the Supreme Court has received coverage in the media. The case involved a claim for race discrimination which was being pursued by an overseas employee who had no right to work in the UK. Initially the Court of Appeal decided that the claim must fail as it was based on a contract of employment which was itself illegal. 

However the Supreme Court has overturned this decision based on more wide spread policy considerations and potentially the issue of human trafficking. It is one of these situations where it is easy to see why the court has acted in the way it has but it leaves a sense of unease particularly if subsequently applied in less blatant circumstances. It must be wrong for any employer to act in an unreasonable manner to their employees and there does seem evidence that those who are working here illegally are, for obvious reasons, particularly susceptible to more extreme behaviour of this kind. 

However aiding the victims of human trafficking should not in my view be the role of Employment Tribunals and this move seems to be an acknowledgement of the Government’s failure to address the underlying problem and an attempt by the Court to intervene by a less appropriate route. 

As a general rule is it reasonable to expect illegal workers to have rights in some areas equivalent to those who are legally working? With the exception of those held against their will those who choose to work here without proper authorisation should not be able to seek redress or compensation through our employment law and appropriate action should be taken against both employers and employees in this situation.