Mr K B Rathod v Clinica Private Healthcare Limited and 1 other — 2024

This was an application for interim relief heard by Employment Judge Joffe sitting alone on 9 September 2024. The claimant had already met the statutory threshold for interim relief at an earlier hearing on 7 June 2024, so the reserved reasons addressed whether a continuation of contract order could lawfully be made in light of the claimant’s sponsored-worker status and the first respondent’s loss of its sponsor licence.

The tribunal held that it could lawfully make an order under section 130 Employment Rights Act 1996. It accepted that the claimant had a certificate of sponsorship dated 21 January 2023, that the first respondent informed the Home Office it had stopped sponsoring him on 8 November 2023, and that the Home Office revoked the first respondent’s sponsor licence on 3 June 2024. Relying on Dowling v M E Ilic Haulage and Langton v The Secretary of State for Health, the tribunal concluded that a continuation of contract order is a purely statutory and unilateral arrangement which does not create an employment relationship, and it saw no legal provision showing that such an order was unlawful because of the immigration position.

The tribunal rejected the respondents’ submission that the claimant’s position with the first respondent was inherently incompatible with a continuation order, and it also rejected the “clean hands” point based on the alleged payment of £22,000 to an agent. It said that, in any event, there was not enough evidence before it to make findings of wrongdoing by the claimant. When asked, the first respondent said it was not willing to reinstate or re-engage the claimant, and the tribunal therefore made the continuation order.

On the amount payable, the tribunal preferred the written contract, which described the claimant as a full-time healthcare assistant with an annual salary of £23,500, over the respondents’ case that he had been engaged to work for third parties on variable hours and pay, for which no contract was produced. It did not accept the respondents’ payslips as establishing the contractual position and accepted the claimant’s net calculations. The order required payment of £16,900.97 for past pay periods from 8 November 2023 to 20 August 2024 by 7 October 2024, and £1,703 on the 30th of each month from the date of the hearing until determination or settlement of the complaint.