Don’t rely on rights in ‘unlawful’ agreements

The courts have had to answer the less-than-straightforward question of whether a worker can rely on an illegal employment contract for protection in the workplace, writes Ricky Coleman of recruitment law specialist Lawspeed.

Zarkasi v Anandita

In this case, 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.

Unlawful contract

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 for the tribunal 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.

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It may be an important consideration that the individual was party to the illegality. It would be interesting to see how this policy would work where an individual did not voluntarily participate in the deception or knowingly enter 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.

Common sense ruling

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.