Legal Updates

Employment Law – Immigration – Working Hours Limitation – Minimum Wage Claim

The recent case of Helbawi v Blue Chip Trading Ltd [2009] involved a dispute over whether an employment contract was illegal or not. The employee in this case was a student subject to immigration regulations.

The employee was employed as a night-security officer at a hostel for homeless people managed by the employer. According to immigration regulations, the employee was permitted to work for up to 20 hours per week during term time. This was extended only in the event that the employee agreed a work placement or internship. Furthermore, the employee was not permitted to fill a vacancy for a permanent full-time position.

The employee proceeded to present a claim before the employment tribunal in which he alleged that the provisions on minimum wage relating to his job had been breached.

The employee accepted that during the relevant period, there were times where he had worked for more than 20 hours during term time. The employee realised that this was not permitted under immigration regulations. The issue that fell to be determined by the tribunal was as to whether the employment contract was illegal due to a breach of either of the two conditions.

The tribunal came to the decision that the employment contract was not illegal.

The tribunal held that the employee was not employed in a permanent position, and accordingly the employee was entitled to pursue his claim for breach of minimum wage laws.

The employer duly appealed against this decision.

The employer argued that the tribunal had been erroneous in deciding that:

§       The employee was not employed in a permanent position;

§       The performance of the contract was not illegal; and

§       Public policy on illegality did not outweigh public policy allowing the exercise of rights afforded to employees by statute.

The appeal was allowed in part.

Based on the facts presented before the tribunal, it was held that the tribunal was entitled to reach the conclusion that the employee was not employed in a permanent full-time position.

Despite this however, it was held that the employee had clearly been acting in breach of the condition to limit his working hours to 20 per week at a number of points during his employment. Furthermore, the tribunal held that he would have been aware that he was breaching that condition.

The intention of Parliament was to prevent an individual from working in circumstances which have not been permitted by the Secretary of State. When the employee exceeded the permitted number of hours, he was knowingly carrying out an action that he was forbidden from doing.

Furthermore, the limit was also a feature of the contract in question, and therefore it was decided on appeal that the employee’s actions were not just a matter of an occasional unlawful act committed in the course of performing an otherwise lawful contract.

However, it should be noted that it was held the case was one in which it was possible to sever the unlawful elements of performance, allowing the employee to recover damages for the remainder. The illegal elements could be split from the legal parts, due to the fact that there were periods when there was no limitation as to hours worked – Such as term holidays.

On appeal, it was also held that public policy would not be served properly if the employee was allowed to claim for any work carried out during the term when he was knowingly acting in breach. Therefore, the matter would be remitted to a fresh tribunal for determination on further issues.

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© RT COOPERS, 2009. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.