Can Employees Without the Right to Work Still Bring Employment Claims? Lessons from Okedina v Chikale

Can an employer avoid an employment claim being brought if the employee had no right to work?

In short, the answer is not necessarily, as was highlighted in the recent case of Okedina v Chikale.

What happened in Okedina v Chikale?

The Court of Appeal decision in Okedina v Chikale [2019] is one of the most significant recent cases concerning the rights of migrant workers in the UK. The case addressed the relationship between immigration status and employment rights. It confirmed that an employer cannot automatically avoid liability simply because a worker did not have permission to work in the UK.

This case stays a leading example of how UK courts seek to balance immigration control with the protection of fundamental employment rights. For employment practitioners, the case demonstrates a judicial willingness to protect vulnerable workers and prevent employers from benefitting from their own wrongdoing. For immigration lawyers, it illustrates that breaches of immigration law do not automatically extinguish employment law rights.

The Claimant succeeded before the Employment Tribunal on contractual and employment claims, receiving an award of £72,271.20.

What were the facts of the case?

The Claimant in this matter, a Malawian national, was brought to the UK by the Respondent to work as a live-in domestic worker. The Claimant initially entered the UK lawfully on a domestic worker visa, however, the visa later expired and they continued to work for the Respondent. The Respondent retained her passport and falsely assured her that steps were being taken to regularise the immigration status. The Claimant continued working under difficult conditions until she was summarily dismissed. She subsequently brought claims for unfair dismissal, unlawful deductions from wages, holiday pay, and other employment-related breaches.

Why did the illegality defence fail?

Both the Employment Tribunal and the Court of Appeal emphasised that the Claimant had not knowingly participated in any illegality. She was unaware of the true position regarding her immigration status because her employer had concealed information from her. Consequently, the Court held that the common law defence of illegality could not be used to defeat her employment claims.

Why this decision matters for vulnerable workers

The judgment is particularly important because it reinforces the principle that vulnerable workers should not be deprived of basic employment protections where they are victims of exploitation rather than active participants in unlawful conduct.

Right to work checks and employer responsibility

Right to work checks are important and it is the employer’s responsibility that they are conducted properly. Employers must ensure they are conducted to maintain a lawful and fair workplace.

What does the Immigration, Asylum and Nationality Act 2006 mean for employers?

The case also raised important questions about the effect of the Immigration, Asylum and Nationality Act 2006. Sections 15 and 21 of that Act impose penalties on employers who employ workers who do not have the right to work in the UK. The employer argued that these provisions meant that any employment contract involving a person without valid immigration status must be unenforceable. The Court of Appeal rejected this argument. It held that Parliament had not intended the legislation to invalidate employment contracts or strip workers of all legal remedies. The statutory provisions were aimed primarily at regulating employer behaviour and discouraging illegal working, rather than denying workers access to employment rights.

Immigration control and employment protection

The case recognises that immigration control measures and employment protection legislation serve different purposes. While immigration law seeks to regulate entry and work in the UK, employment law seeks to protect workers from exploitation and abuse.

What does this mean for employment and immigration practitioners?

For employment practitioners, the case demonstrates a judicial willingness to protect vulnerable workers and prevent employers from benefitting from their own wrongdoing. For immigration lawyers, it illustrates that breaches of immigration law do not automatically extinguish private law and employment law rights. The case therefore remains a leading example of how UK courts seek to balance immigration control with the protection of fundamental employment rights.

Key takeaways for employers hiring migrant workers

• Conduct right to work checks before employment commences.
• Employers should diary follow-up checks where worker’s permission is time limited.
• Employers should not assume that an immigration issue removes the employee’s right to bring a claim.
• If an issue is likely to arise, employers should deal with it clearly, fairly and should seek proper advice. Getting the basics wrong can quickly turn into a costly dispute.

Contact Us

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Our Business Immigration team at Cleaver Fulton Rankin can provide you with the specialist advice you need.

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