Employers might assume that workers without the right to work in the UK cannot bring employment tribunal claims. However, this is not the case. A recent tribunal decision serves as an important reminder that whilst a lack of the right to work in the UK may prevent some claims from succeeding, it will not necessarily be fatal to all claims. This is particularly true for those under the Equality Act 2010.

Read on as we examine the facts in Ong v Yatson & Co Ltd, and discuss the tribunal’s judgment. We then explore why this matters in an employment law context.

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Understanding the Right to Work in the UK 

The UK’s immigration framework requires employers to ensure that all employees have the legal right to work in the UK. Employers are expected to carry out prescribed right-to-work checks. They should also maintain appropriate records to establish a statutory excuse against civil penalties.

Failure to comply can result in significant consequences. Employers who hire individuals without the necessary immigration permission may face substantial fines and reputational damage. In certain circumstances, they may even face criminal sanctions. 

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Employment tribunals have long recognised the principle that individuals may be prevented from enforcing rights arising from an unlawful contract. For example, a person cannot sue for payment under a contract to smuggle prohibited goods because the agreement itself is unlawful. 

Where an employment relationship is founded on illegal conduct, or where both parties knowingly participate in arrangements that breach immigration laws, tribunals may conclude that certain claims cannot proceed. This principle is often referred to as the doctrine of illegality. 

As a result, workers who lack the right to work in the UK may face significant obstacles when bringing claims that rely directly on the employment contract itself. 

Ong v Yatson & Co Ltd

Background to the Right to Work in the UK Issue

Ong v Yatson & Co Ltd confirms that employers cannot rely on immigration status as a defence to allegations of discrimination.  

The Claimant, a Malaysian national, first came into contact with the Respondent after placing an advertisement online. The tribunal accepted evidence that the parties subsequently exchanged a series of WeChat messages discussing the role and the terms of employment. 

According to those messages, the Claimant was offered a hotel management position with a starting salary of £28,000. This increased to £30,000 following a three-month probationary period. The parties also discussed annual leave entitlement, working hours and accommodation arrangements.

Significantly, the conversations included discussions about the Claimant’s immigration status and the possibility of obtaining a work permit. The tribunal heard evidence that the Respondent indicated a work visa application could be pursued if the arrangement proved suitable for both parties. The parties also discussed visa-related costs, including the Certificate of Sponsorship process. 

The tribunal found that there were references to the Claimant being paid in cash before a work permit was obtained and to steps being taken thereafter to regularise her immigration position. 

The Claimant entered the UK on a visitor visa and did not have permission to undertake employment. Despite this, she worked for the Respondent for a period of 36 days.  

The Dispute and the Respondent’s Defence

Following workplace disputes and the eventual termination of her employment, the Claimant brought a range of claims before the tribunal. 

An unusual feature of the case was the Respondent’s challenge to the Claimant’s identity and account of events. Mr Zhou, the representative of the Respondent at the hearing, maintained that he didn’t recognise the Claimant, had never met her and had no knowledge of the matters she described. This was despite the Claimant producing evidence of recruitment discussions, employment arrangements and subsequent workplace interactions. 

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The tribunal appears to have been unconvinced by this position. It noted that Mr Zhou frequently stated he couldn’t remember events or comment on matters he claimed had never occurred. The tribunal also recorded an exchange in which Mr Zhou, despite maintaining that he had never met the Claimant, expressed the view that she couldn’t be disabled based solely on seeing her during the video hearing (from the neck up). He explained that this assessment was based on a “gut feeling”. 

Some of the claims brought relied directly on contractual employment rights. Others concerned allegations of race discrimination, sex discrimination and disability discrimination under the Equality Act 2010. The tribunal therefore had to consider whether the Claimant’s lack of the right to work in the UK prevented any or all of her claims from succeeding. 

What Did the Tribunal Decide? 

The tribunal drew a clear distinction between claims that depended on the Claimant’s employment contract and claims that arose independently under discrimination law. 

It found that the Claimant’s employment contract was “tainted by illegality” because she didn’t have permission to work in the UK when she was employed. As a result, claims that relied on the existence of a valid employment contract could not succeed. 

In the tribunal’s view, allowing the Claimant to recover under these types of claims would effectively require the court to enforce rights arising from an unlawful employment relationship. Those claims were therefore dismissed. 

However, the tribunal took a different approach to the Claimant’s discrimination allegations. It held that claims for race discrimination, sex discrimination and disability discrimination were not “inextricably linked” to the illegal employment arrangement and could therefore proceed. 

The tribunal found in the Claimant’s favour on several Equality Act allegations. Importantly, it rejected the argument that her immigration status automatically barred those claims. 

Right to Work in the UK: Why Does This Matter? 

The significance of Ong v Yatson & Co Ltd lies in the distinction the tribunal drew between contractual employment rights and statutory discrimination protections. 

While the Claimant’s lack of the right to work in the UK prevented her from enforcing rights that depended on a valid contract of employment, the tribunal recognised that discrimination claims serve a different purpose. The Equality Act 2010 is designed to prevent unlawful treatment in the workplace and protect individuals from discrimination because of protected characteristics such as race, sex and disability. 

Had the tribunal accepted that a lack of immigration status automatically barred discrimination claims, employers could potentially avoid liability for discriminatory conduct by pointing to a worker’s lack of permission to work. The decision makes clear that this is not the law. 

For employers, the case serves as a reminder that right-to-work compliance and equality obligations must be considered together. Conducting appropriate checks before employment begins remains essential. However, employers should not assume that discovering an employee lacks the right to work in the UK will provide a complete defence to all employment-related claims. 

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Ultimately, the key question will be whether the claim is sufficiently connected to the illegal employment arrangement. Where a claim seeks to enforce rights arising from an unlawful contract, it may well fail. Where, however, a claim is based on independent protections such as those contained in the Equality Act 2010, the tribunal may still be prepared to hear it. As the above case demonstrates, lacking the right to work in the UK isn’t always a defence to discrimination claims.

Get Help with Redmans

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