Veitch Penny LLP - Exeter | Crediton, Devon

Case

Governing Body of Addey & Stanhope School v Vakante
Employment Appeal Tribunal (18 August 2002)

Issues

(1) Race discrimination
(2) Asylum seekers
(3) Illegal conduct

Facts

The Applicant, Vakante, was an asylum seeker and accordingly could not take employment without having consent from the Home Office. He applied to the Respondent body as a graduate trainee teacher. The decision regarding his asylum application was still pending, when he informed the Respondent that he did not need a work permit. He commenced work in November 1999, but continued to claim state benefits and made fraudulent statements regarding his status in order to allow the benefits to continue.

He was still claiming benefits when he was dismissed in July 2000. If the Respondent had been aware of its employee’s status, it could have ended his employment on the basis of illegality, which rendered the employment void. As it was unaware of the nature of the situation, the Applicant was dismissed.

The Applicant made a claim for race discrimination. At first instance, it was held that he was not prevented from making such a claim.

The Respondent appealed and the Appeal Tribunal had to consider whether the Applicant was prevented from making a claim of race discrimination.

Decision

The appeal was allowed, and the matter remitted back to the Employment Tribunal.

It was found that the Applicant’s contract was in breach of s.24 of the Immigration Act 1971. In addition, both parties had committed criminal offences under the Asylum and Immigration Act 1996. Clearly the contract was illegal.

The Appeal Tribunal noted that a distinction had to be drawn between those cases in which the employee sought to enforce a contractual right under an illegal contract and those in which the employee sought to enforce a right in tort (such as claims of sex and race discrimination). This claim was in contract and it was clear it was illegal. The consequence was that neither party could enforce their rights under the contract, because it had been illegal from the outset. This was also the case in those cases in which the contract became illegal through its performance (inferring that the parties had participated in the illegal performance).

This present claim was based in tort. In the case of Leighton –v- Michael [1996], it was held that there was no reason why a person could not seek the protection of a statute, as the statutory claim was not founded on or was not seeking to enforce contractual obligations.

It was noted that whilst claims of sex discrimination did refer to whether a person was “employed”, the claim itself was not based upon the contract. This decision was confirmed by Hall –v- Woolston Hall Leisure Ltd [2000].

In this case, the Appeal Tribunal applied this reasoning to the Applicant’s claim for race discrimination. The Employment Tribunal should have considered whether the claim was so closely connected or inextricably linked with the illegal contract that allowing the claim would be seen as condoning the illegality.

The mere fact of the dismissal could not be inextricably linked with the illegality, and accordingly should not be allowed to proceed.

Comments

The interesting point to note in this case is that the Appeal Tribunal has distinguished between sections 4(2)(b) and (c). Claims under (b) are likely to be inextricably linked with illegal contracts (and should not be allowed to proceed) whereas a claim under (c) may not be inextricably linked with illegality and would be allowed to continued.