San Ling Chinese Medicine Centre v Lian Wei Ji

It is a well established principle in law that courts will not find in favour of anyone who tries to bring a claim based on an illegal or immoral act. In San Ling Chinese Medicine Centre v Lian Wei Ji, the Employment Appeal Tribunal (EAT) said that as long as the person was not guilty of any unlawful conduct and had not benefited from the illegality, they could pursue their tribunal claim.

Basic facts

Ms Lian Wei Ji, a Chinese national, was in the UK on a student visa. She graduated in the summer of 2006 and started work at the San Ling Medical Centre in September 2006. Dr Wen, the owner of the business, successfully applied for a work permit for her stating that she was on a salary of £18,000.

However, Ms Wei Ji then signed a document (which the tribunal accepted had been signed under duress) stating that her salary would be calculated according to the volume of work she did, but that she would pay tax on £18,000. She was given two sets of payslips - one in English with the figure shown on the work permit with deductions for tax; and one in Chinese showing the sums she was actually paid.

Having obtained her work permit in March 2007, Dr Wen then successfully applied for her visa granting leave to remain until 7 March 2012. Ms Wei Ji continued to work at the centre until the end of June 2008 when she was dismissed. She then brought claims of unfair dismissal, failure to give her written particulars of employment, unlawful deductions from wages and unpaid holiday pay.

Her erstwhile employer argued that, as she was in breach of immigration rules, her employment was unlawful.

Tribunal decision

The tribunal said that from September 2006 to March 2007 (when Ms. Wei Ji obtained her work permit), she was working legally under her student visa. As she had graduated, she was not subject to the usual term time restriction of 20 hours per week.

From March 2007 to June 2008, the tribunal said that although she was working under the permit obtained by Dr Wan on a lower salary than the one stated on the permit, this was not an illegal act as the salary was not a condition of the work permit.

Dr Wen appealed, arguing that the tribunal had ignored immigration law when it concluded Ms Wei Ji was not in breach of her student visa when she started full time work and that her contract was tainted with illegality.

EAT decision

The EAT, however, disagreed. It said that the tribunal was right to decide that it was lawful for her to work for Dr Wen under her student visa as she had already graduated by that point and the term time restrictions did not apply.

It also said that Ms Wei Ji had not colluded with Dr Wen in making a false declaration of her proposed earnings in order to obtain a work permit as she had been forced to agree to less favourable terms to protect her immigration status.

And it held that Ms Wei Ji had not been involved in trying to defraud the revenue as she had actually paid tax on the basis of receiving a salary of £18,000 even though she was receiving less than that. However, the fact that she was being paid less than the salary stated on the permit did not mean her contract was void nor did it mean that her work permit should have been automatically revoked.

The EAT therefore concluded that Ms Wei Ji was not guilty of any unlawful conduct and had not benefited from the illegality that had been forced upon her by her employer. It also said that the tribunal had been entitled to decide that her contract was lawful and she could bring a claim of unfair dismissal, failure to give her written particulars of employment, unlawful deductions from wages and unpaid holiday pay.