Last month we reported the decision in Jose v Julio (and other linked cases) concerning au pairs and the minimum wage.
This month sees a new case looking at the position of a domestic worker from overseas and the extent to which she could benefit from UK employment law rights. The complications in Zarkasi v Anindita and another were that (i) this worker entered the UK using false documents obtained by her employer – with her full agreement and co-operation, (ii) she was thus an illegal immigrant with had no legal right to work in this country, and (iii) she believed – or at least was prepared to claim – that she had been the victim of human trafficking.
Ms Zarkasi came from Indonesia to work in the household of her employer, having agreed to stay for two years. When she got here, she found she was expected to sleep on the sofa, rather than in her own room as promised, and she was paid under the minimum wage. After two years had expired, perhaps surprising that it wasn’t sooner, she decided she wanted to return home. After staying for a further period, at the request of her employer, she left and went to a trafficking charity for help. She then claimed both unfair dismissal and race discrimination.
She failed in her claims at the employment tribunal, whose decision was upheld by the Employent Appeal Tribunal, despite the fact that the employment tribunal did take the view that she had been economically exploited, and the Employment Appeal Tribunal was sympathetic to the plight of trafficked workers.
The crunch was that her contract of employment was illegal, because it was founded on her illegal entry to the UK using falsified documents, in which she had willingly participated. The contract was therefore invalid, and no claim which was based on it could be upheld – including one for unfair dismissal. The Employment Appeal Tribunal considered that Ms Zarkasi had not been trafficked (although the Border Agency had accepted that she was), but it did not actually matter. A possible breach of international law on trafficking would give Ms Zarkasi enforceable rights in other courts and parts of the justice system, but the employment tribunal was not one of them. Such a breach, quite simply, was not a relevant factor before the employment tribunal, and thus did not give rise to any exception to the rule against enforcement of illegal contracts.
Her race discrimination failed because, although it was not founded on an illegal contract (which might have allowed her to pursue a claim), the reason for her treatment was that she had no right to remain in the UK or to work here, and that anyone else in the same position would have been treated the same, irrespective of their nationality or ethnic origin.