For a discrimination claim to succeed where the person’s contract is illegal, there needs to be a clear connection between the facts giving rise to the claim and the illegality. In Wijesundera v Heathrow 3PL Logistics Ltd and Mr Natarajan the Employment Appeal Tribunal (EAT) held that the woman’s harassment claim was not so inextricably bound up with the contract of employment or the illegality that it could not succeed.

Basic facts

Ms Wijesundera, who is Sri Lankan, worked legally in the UK from 2006 until February 2009 when she was made redundant. She applied to Heathrow 3PL Logistics Ltd (H3PL) for agency work and was interviewed in May by Mr Natarajan (Mr Raj). Although she did not start work for the agency until August 2009, she was invited on a number of occasions to Mr Raj’s office where he seriously sexually assaulted her twice.

She started working for H3PL on 1 August, although Mr Raj had still not transferred her work permit to allow her to work for the agency. This took a further two years, at which point Mr Raj told her that he no longer required her to work for them. During that time, she was repeatedly sexually harassed by Mr Raj.

She claimed unfair and wrongful dismissal, as well as sex discrimination and sexual harassment.

Tribunal decision

The tribunal rejected all her claims as she was unable to establish an employment relationship with H3PL. The first two sexual assaults took place before her employment began, meaning she was not employed by anyone and the tribunal did not therefore have jurisdiction to award a remedy for these “despicable assaults”.

In relation to her other allegations of assault and harassment once she started work for the agency, the tribunal held that, even if it could be assumed that she was employed, the contract was “unlawful from top to bottom and from beginning to end”.
She appealed, arguing that the tribunal had ignored section 40(1)(b) of the Equality Act which states that employers must not harass someone who is their employee or “who has applied …for employment” with them.

EAT decision

The EAT agreed that the factual circumstances in this case were capable of falling within section 40(1)(b). There was a clear link between the harassment and the employment, as it took place when she was hoping to be employed by H3PL, having applied to work for them.

Nor was there any illegality at this stage as she had not actually started work. The tribunal was therefore wrong to conclude it had no jurisdiction. It was also wrong to apply a test of illegality as a bar to her claim at that time, given that she was not doing anything illegal at that point.

As for the incidents that took place after 1 August 2009, the EAT held that the tribunal had failed to ask itself “whether, on all the facts, the claim is inextricably bound up with the applicant's illegal conduct”.

Had it done so, it would have found that the actions in this case were not bound up with illegality “because there was nothing intrinsic about being an employee that leads to sexual harassment or freedom from it”. The fact of her employment may have given rise to a practical opportunity for the acts to be committed, but that was very different from saying that the employment was in any sense inextricably linked with the harassment.

Comment

This case confirms that employers cannot evade their responsibilities not to discriminate or subject an applicant or employee to harassment under the Equality Act 2010 by simply claiming that the person has no work permit and is therefore illegal.