Wijesundera v Heathrow 3Pl Logistics Ltd (Debarred) and Another: EAT 5 Dec 2013

EAT Jurisdictional Points : Fraud and Illegality – A Sri Lankan woman agreed to work for the First and Second Respondents, but made it clear she could not do so unless and until she was sponsored by them to do so, so that she had a valid work permit. For some months she remained in contact with the Respondents, until eventually she began to work in anticipation of, but without, the necessary work permit. During that period – prior to her actually working – she was seriously sexually assaulted by the Second Respondent.
Her work permit did materialise but after she had worked for over a year, during which she had again been subjected to serious sexual harassment.
An Employment Tribunal dismissed her claims because either she was not an employee, and could not claim, or she was but was employed under an illegal contract, which it would not condone.
On an appeal at which the Respondents were debarred from appearing, held that the ET had failed to consider s.40(1)(b) of the Equality Act 2010 which protected applicants for employment (which she plainly was when the first assaults occurred); and had wrongly failed to identify the principles by which defences of illegality were to be considered when it wrongly asked whether the facts of the present case could be distinguished from two Court of Appeal authorities, neither of which established the applicable principles. Applying these principles as set out in Hall v Woolston Leisure, the claim save in respect of dismissal was not so inextricably bound up with the contract of employment or the illegality as to be defeated by the defence.
The ET had not resolved whether the First or Second Respondents were the employer, but the findings of fact justified only one answer. However, the question whether the First Respondent was liable under s.109 EqA 2010 for the actions of the Second Respondent who alone had been the sexual predator was remitted to the ET, with observations as to the approach it should adopt.

Langstaff P J
[2013] UKEAT 0222 – 13 – 0512
Equality Act 2010 40(1)(b)
England and Wales

Employment, Discrimination

Updated: 01 December 2021; Ref: scu.522374