Contact: Liz Timmins; Clarkslegal LLP (Reading, England)
In the case of Wijesundera v Heathrow 3PL Logistics Ltd the EAT held that a Sri Lankan national who was working without a work permit was able to bring a claim of sexual harassment.
On applying for work with the Respondent, the employee informed them that she required a visa to lawfully work in the UK. In the months before she started work she visited the Respondent's offices to discuss work and was sexually assaulted and harassed. She then started working for the Respondent without a valid visa and the sexual assault and harassment continued. She was dismissed 2 years' later on the basis that she was no longer required, following which she brought a claim for sexual harassment under the Equality Act, amongst other claims.
The EAT considered whether the employee could bring a claim for sexual harassment even though she was working illegally. It firstly found that, in relation to the incidents that occurred before the employee started working, at this stage she was a job applicant and so protected under the Equality Act. As she was not working the question of illegality didn't apply and the Respondent was liable for harassment. As for the further incidents during employment, the EAT held that the claim for sexual harassment, apart from the elements of the claim that related to her dismissal, was not so inextricably bound up with the contract of employment or the illegality that she should be deprived of a remedy.
In its view, whilst her employment may have given rise to the opportunity for the acts to be committed, it was certainly not the case that the employment was in any sense necessary, causative or inextricably linked with the harassment. This was not a case where the detriments complained of entirely depended upon there being a contract of employment in existence, and so the Respondent was liable.
This case highlights the broad protection offered by the Equality Act and the need for employers to ensure that the background and history of any employment, and the risk of Employment Tribunal claims, is fully considered before dismissal.
Further information on the rules surrounding UK immigration and right to work checks can be found here.
