Dr C Esume v Core Care Links Limited Heard: via Cloud Video Platform — 2020

Dr C Esume brought a claim for unlawful deduction from wages, seeking £10,002 for work said to have been done between 1 and 14 January 2020. The hearing on 21 September 2020 was a preliminary hearing before Employment Judge Ayre sitting alone. The respondent's name was amended by consent to Core Care Links Limited, and the respondent indicated that if its illegality point failed it accepted the £10,002 figure and would not pursue the employee/worker jurisdiction argument.

The claimant was a GP who had worked for the respondent from 12 July 2019 until 14 January 2020. He held a Tier 2 (General) visa sponsored by another company, Fieldhouse, which allowed him to work for that sponsor and limited supplementary work. He resigned from his sponsor with effect from 31 December 2019 and, because his departure to Canada was delayed, worked some further shifts for the respondent until 14 January 2020. The tribunal accepted his evidence that he believed his visa remained valid until September 2020 and that he did not realise he could not continue working once his sponsor relationship had ended. The respondent did not ask for right-to-work evidence before he started work and only checked his immigration status on 28 January 2020.

Applying Patel v Mirza, Stoffel and Co v Grondona, and Okedina v Chikale, the tribunal held that the contract was not unenforceable for illegality. The judge found that the claimant was genuinely mistaken and not aware that his January work was unlawful, that the respondent was also unaware at the time, and that both parties were under a mistaken impression while the work was done. The tribunal concluded that the purpose of the immigration rules would not be served by denying payment for hours actually worked, that no other public policy required the claim to fail, and that refusing enforcement would be a disproportionate response.

The tribunal attached weight to the respondent's failure to carry out right-to-work checks before the claimant started work and found that the respondent bore the greater degree of culpability. The illegality defence therefore failed, and the claimant was held entitled to enforce his contractual rights in the Employment Tribunal. No substantive award was made in this preliminary judgment, and the underlying wages claim remained to be determined separately.