WorkRep Free Advice:- Contract illegality - SAN LING CHINESE MEDICINE CENTRE v LIAN WEI JI - [2010] EAT - we represent workers at employment tribunal


Judges restrict employers' use of the illegality defence against employee unfair dismissal claims SAN LING CHINESE MEDICINE CENTRE v LIAN WEI JI - [2010] EAT UKEAT/0370/09/ZT
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26/01/2010 This case follows others whereby judges have narrowed the employer's ability to use an illegality defence against employee unfair dismissal claims. An employee was paid less than the salary declared for her work permit (The employer stated the real rate of pay on a chinese language payslip with the bogus rate printed in English on another for the benefit of the the UK Border Agency ). Slade J of the EAT decided that for a contract to become illegal an actual revocation of the work permit is required ( not just that circumstances exist that could lead to this happening). The Claimant's case was judged as not meeting the illegality test in Hall v Woolston Hall Leisure Ltd whereby an otherwise lawful contract becomes unlawful in performance. A contract of employment may remain valid even though a Claimant works for less salary than that stated in a work permit application. The EAT affirmed the ET's finding that the worker did not collude in any misrepresentation in obtaining a work permit, nor did she evade tax (the employer's false declaration involved the worker paying more tax than justified by her income). The ET's original award to the employee amounted to Ł12,037.38 for unfair dismissal, failure provide written particulars of employment, unlawful deductions from wages and unpaid holiday pay. The chutzpah of a company cheating the authorities (and in this case making a low paid worker pay more tax)only then to use the contractual illegality defence to prevent their employee from gaining any recompense has existed for too long. The tribunals are thankfully now giving the thumbs down to this chicanery. The following cases were considered: Hall v Wollston Hall Leisure Ltd [2004] 4 AER 787 (applied), Blue Chip Trading Ltd v Helbawi UKEAT/0397/08/LA and Vakante v Governing Body of Addey and Stanhope School [2005] ICR 231.

The transcript of this case follows:- SAN LING CHINESE MEDICINE CENTRE v LIAN WEI JI - [2010] EAT
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