Mr D Reade QC, counsel For the v Mr O Onibokun, solicitor — 2017

The tribunal found that the claimant, a Malawian national, entered into a contemporaneous contract with the respondent on 9 September 2010 to work as a live-in house helper/carer for the respondent's parents in Malawi. It rejected the respondent's case that the document was backdated and found that the claimant who arrived in the UK on 6 July 2013 was the same person with whom the respondent had contracted, not a different family member. The tribunal also found that the later UK domestic-worker arrangement was not a two-month temporary arrangement, but an indefinite employment relationship at an agreed rate of £400 per month.

On the immigration issue, the tribunal found that the respondent's Surinder Singh application contained false information, including inaccurate assertions about residence in Ireland and the claimant's family connection. It held that the contract became illegally performed after the domestic-worker visa expired on 29 November 2013, but that the claimant did not knowingly participate in that illegality, so the contract remained enforceable. The tribunal also held that the claimant's service in Malawi counted as continuous service under section 215 ERA 1996, running from 9 September 2010 to the date of dismissal.

The tribunal found that the claimant was dismissed on 18 June 2015 when she was told to leave the house after asking for more money and holiday pay. No disciplinary or grievance process was followed. The unfair dismissal claim therefore succeeded, the wrongful dismissal claim succeeded for statutory notice, and the tribunal found an unreasonable failure to comply with the ACAS Code, indicating a 5% uplift on the jurisdictions to which that applies. It also rejected the respondent's family-household exemption case on national minimum wage, finding that the claimant was not treated as a member of the family for regulation 57(3) purposes.

The tribunal accepted that the claimant worked throughout the UK period, with her duties increasing when the respondent's mother-in-law moved in, and found that she did not receive daily or weekly rest breaks. It held that the claimant had not taken annual leave in the relevant leave year and that holiday pay was due from 9 September 2014. The unlawful deductions from wages claim and the contractual unpaid wages claim both succeeded, but quantum was left for the later remedy hearing and no final monetary award was fixed in this judgment.

On discrimination, the tribunal dismissed the direct race discrimination claim because it found the reason for the treatment was precarious immigration status rather than race. The indirect race discrimination claim was withdrawn at the start of the hearing. The tribunal also upheld the claims for failure to provide written particulars of employment and failure to provide itemised pay statements, finding that the particulars given were incomplete and that no payslips had been provided. The written-particulars remedy was left to be determined, and the tribunal said no financial remedy flowed from the payslip finding.