Zarkasi v Anindita

A contract which legislation makes unlawful from the outset cannot be enforced through employment claims dependent upon that contract. The doctrine of illegality is a matter of public policy, not a discretionary assessment of justice, and an international convention which is not part of domestic law cannot validate the contract or require an Employment Tribunal to create a remedy. The position may differ where a claimant’s adherence to the contract was involuntary, including through duress, but that issue was not engaged on the findings of willing participation. For discrimination claims independent of the contract, the comparator must share the claimant’s relevant immigration and work-status characteristics. The “but for” inquiry remains directed to the factual ground of the treatment; nationality was not the reason for the treatment here.

The appellant, an Indonesian domestic worker, entered the United Kingdom using a passport and visa obtained in a false name and worked for the respondents without the right to work. An Employment Tribunal dismissed contractual employment claims on illegality grounds and rejected race-discrimination claims because there was no evidence that a hypothetical comparator in the same unlawful immigration and employment position would have been treated more favourably.

On appeal, the appellant argued that the Council of Europe Convention on Action against Trafficking in Human Beings, the European Convention on Human Rights and the doctrine of public policy required the Tribunal to determine whether she had been trafficked and to permit compensation claims. She also challenged the comparator and “reason why” approach to race discrimination.

1. Appeal dismissed. The Employment Tribunal reached the correct result, although its reasoning that it lacked inherent jurisdiction was open to criticism because its jurisdiction involved contractual concepts drawn from the common law.
2. Where legislation renders a contract unlawful from the outset and throughout its existence, the public policy underlying the second category identified in Hall v Woolston Hall Leisure Ltd prevents any party enforcing rights founded upon that contract. The Tribunal had no discretion to treat the contract as partly lawful.
3. The trafficking Convention was not part of United Kingdom domestic law. Consistently with R v Secretary of State for the Home Department ex parte Brind and Ors, it could not be used to validate a contract which domestic law treated as illegal. The Convention did not require the Employment Tribunal to provide the remedy sought, particularly since other domestic remedies might be available to a genuine victim of trafficking.
4. On the Tribunal’s findings, the appellant had knowingly and voluntarily participated in obtaining false documents and entering the unlawful employment arrangement. Those findings were inconsistent with trafficking understood holistically under Article 4 of the Convention. The Tribunal was entitled to rely on its own findings rather than an administrative assessment. The EAT left open whether involuntary adherence to a contract by a trafficked claimant, or duress, might raise different considerations.
5. The race-discrimination comparator was properly treated as a person sharing the appellant’s lack of immigration and work rights. A British national would not be an appropriate comparator because that person would have the right to live and work in the United Kingdom. The Tribunal was also entitled to conclude that the treatment resulted from immigration and work-permit status, not nationality. The “but for” test did not alter that factual conclusion.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s dismissal of the contractual and race-discrimination claims.
• Employment Tribunal: dismissed the claims on illegality grounds and for failure to establish race discrimination.