In Ong v Yatson & Co Ltd it was held that illegal working does not prevent an employee from successfully claiming discrimination; there is a distinction between liability under the Equality Act 2010 (EqA) and illegal working.
Facts
The claimant is a Malaysian national. They had previously been employed legally in the UK as a consultant for a leading accountancy firm. On being offered employment with the respondent, they travelled to the UK on a visitor visa and began work in their hotel. No formal contract was agreed between the parties, nor was a certificate of sponsorship or work visa arranged — instead, the respondent sent a message to the claimant simply stating: “work permit after one month if both parties feel it is suitable to apply.” There was also no formal payroll documentation in place.
The claimant worked for the respondent for around 36 days as financial manager/receptionist. During that time, they were asked to undertake housekeeping duties. However, after these caused aggravation to their pre-existing asthma, the claimant refused to do them. They were told to resign and leave by a manager of the respondent, however they did not. They were then dismissed, with the refusal to do these duties cited as a reason why.
The claimant brought claims for unfair dismissal, unpaid wages, notice pay and holiday pay. Several claims under the EqA were also brought including sex, race and disability discrimination.
Employment Tribunal (ET)
Before the employment tribunal (ET), the claimant admitted that they were aware that they needed a work visa to work in the UK. As the ET noted, the claimant was highly educated and had previously been employed legally in the UK. They also had a solicitor to advise them on the requirements of UK law. This, the ET found, made it clear that the claimant was aware that they did not have permission to work in the UK and therefore the contract under which they were employed was “tainted by illegality”. Based on this, the ET held that they couldn’t pursue the claims which depended on the contract existing. The unfair dismissal and pay-related claims flowed from entitlements under that contract and were therefore “inextricably linked” to it. These claims were dismissed.
Turning to the discrimination claims, the ET drew a distinction between these and the ones that were based on the contract, holding that it was not necessary for the contract to exist for the EqA claims to arise. Accordingly, the ET examined each of the claims on their merits. Various discrimination claims were brought. Those that the ET found in the claimant’s favour are set out below.
In relation to disability discrimination, the claimant alleged that housekeeping duties involving dust and fumes aggravated their asthma and that they were forced to continue with the duties despite informing their manager of this. This claim succeeded, with the ET finding that the claimant had shown enough for the burden of proof to shift to the respondent to prove that the reason the claimant was treated in this way was not discriminatory. They were unable to do this and the claim succeeded.
Under race and sex discrimination, the claimant alleged that they had been told it was company policy that employees provide their passport before arrears of pay would be released. The ET found that only other female employees had been required to do this and upheld the claims.
