Settlement Agreements and the right to work in the UK

It is common place for employers to ask for various documents and forms of ID when you start work for them. This is because they must ensure that all of their employees have the right to work in the UK. If an employer employs someone without the right to work in the UK they can face severe financial penalties and potentially a jail sentence.

If an employer discovers that an employee does not have the right to work in the UK, or that their right has ended, they cannot continue to employ that particular person.

However, there have been various cases in Employment Tribunals and the Employment Appeal Tribunal relating to the rights of someone who does not have the right to work in the UK when it comes to bringing a claim. A recent case (Wijesundera v Heathrow) in the EAT looked at this in the context of various discrimination claims.

A Sri Lankan national working in the UK without a valid work permit (and therefore illegally) was allowed to bring claims for discrimination (including sexual harassment) because the EAT decided that these claims were not inextricably linked to her illegal employment contract. Therefore the employer was not allowed to rely on the defence of illegality to avoid the employee’s claims against it. In this case the EAT allowed her to bring claims related to pre-employment (i.e. when she was a job applicant) but not relating to her dismissal as this was inextricably linked to her right to work in the UK and therefore to illegality.

As a general rule, the EAT has decided that its approach should be ‘to consider whether the applicant’s claim arises out of or is so clearly connected or inextricably bound up or linked with the illegal conduct of the applicant that the court could not permit the applicant to recover compensation without appearing to condone that conduct’.

This case clearly shows that claims for discrimination are not as clear cut as claims arising from a contract of employment (for example unfair dismissal) which would rarely be allowed in circumstances of illegality.

If you have been offered a settlement agreement for any type of dispute, please feel free to contact us.

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