A Malaysian hotel manager who had no legal right to work in the UK has won an employment tribunal after a judge ruled she was still protected from workplace discrimination despite her immigration status.
The ruling is likely to attract significant attention from employers and HR teams because it confirms that workers employed unlawfully may still bring successful discrimination claims under equality law.
The tribunal found that the claimant had faced disability, race and sex discrimination while working at a hotel in Cumbria, despite being in Britain on a visitor visa without a valid work permit.
The case centred on Yatson & Co Ltd, which operates the Fisherbeck Hotel in Ambleside, Cumbria.
Tribunal rejects argument over illegal employment
Employment Judge Susan Dennehy ruled that the claimant, Erin Ong, could pursue discrimination claims because the alleged treatment was not “inextricably linked” to her unlawful employment status.
Ong had travelled to the UK on a visitor visa and did not hold a skilled worker visa permitting employment. The tribunal heard she had previously worked as a tax consultant for one of the “big four” accountancy firms before later operating a restaurant business in China.
She was recruited by hotel director Zhiyong Zhou to work as a hotel manager on a salary of £28,000 a year, with the understanding that a work permit might later be arranged if the arrangement proved successful.
The tribunal found there was no formal employment contract and Ong never received payslips or wages. The judgment also found Zhou was aware she did not have the legal right to work in Britain.
Discrimination findings
The tribunal heard Ong suffered from asthma and was required to carry out duties involving cleaning chemicals, feather bedding and other asthma triggers while working at the hotel. She experienced breathing difficulties and reportedly used her inhaler several times a week.
During her third week at work, she suffered an asthma attack and requested sick leave, which the tribunal heard was refused. The judge ruled the treatment could amount to disability discrimination.
“I find that being asked to undertake housekeeping duties when suffering from asthma and being exposed to her asthma triggers could amount to unfavourable treatment,” Judge Dennehy said.
The tribunal also found Ong was the only employee required to show her passport before being paid wages, which formed part of the successful race discrimination claim. The judgment further stated that Zhou had a history of paying female employees late and that Ong herself had not been paid wages during her employment.
She was later dismissed, after refusing to move accommodation from Ambleside to Kendal, also in Cumbria.
Employer fined over illegal workers
The tribunal ruled in Ong’s favour on claims relating to disability, race and sex discrimination. Compensation will be determined at a later hearing. Separately, Yatson & Co was fined £10,000 in January 2024 for employing illegal workers.
Judge Dennehy said the company had failed to carry out proper right-to-work checks.
“Mr Zhou told me in his oral evidence that he did not carry out, or ask anyone else to carry out, an audit of what right to work checks were done,” she said.
The ruling highlights how employers can still face significant legal exposure over workplace treatment even where employment itself breaches immigration rules.
Employers still face Equality Act claims
Employment lawyers have long warned that unlawful immigration status does not remove protections under the Equality Act where discrimination can be established independently of the worker’s right to work.
Liz Stevens, a support lawyer in the employment team at legal practice Birketts LLP, told HRreview that the ruling showed employers could still face discrimination liability even where employment itself was unlawful.
“This decision highlights the complexities of illegal working and its effect on contractual or statutory rights and discrimination claims. It is a reminder that breaches of immigration law and an employer’s failure to carry out right to work checks do not prevent liability arising under the Equality Act 2010,” she said.
Stevens said the tribunal had drawn a distinction between contractual claims and discrimination protections.
“Since both parties were aware that the claimant did not have the right to work from the outset, meaning they had knowingly participated in illegal working, the tribunal held the employment contract to have been ‘tainted by illegality’. This meant that her contractual and statutory claims, including unfair dismissal, could not be upheld,” she said.
“However, discrimination claims are treated differently and are only barred if found to be inextricably linked to the illegality. The tribunal was satisfied that the discriminatory treatment was not sufficiently connected to the illegality, meaning some of her claims were upheld.”
She also said the employer’s handling of immigration compliance and workforce management had weakened its defence.
“The case highlighted multiple deficiencies in the employer’s approach to immigration law and workforce management, with little or no evidence to demonstrate compliance. This significantly undermined the employer’s credibility and ability to successfully defend the claims,” she said.
“In particular, employers cannot assume that immigration breaches will serve as a defence to all claims, and discrimination claims may still be upheld even if the employment contract is found to be illegal,” she said.
The case also shows the importance of proper right-to-work checks, consistent treatment of staff and careful handling of health conditions in the workplace.
William Furney is a Managing Editor at Black and White Trading Ltd based in Kingston upon Hull, UK. He is a prolific author and contributor at Workplace Wellbeing Professional, with over 127 published posts covering HR, employee engagement, and workplace wellbeing topics. His writing focuses on contemporary employment issues including pension schemes, employee health, financial struggles affecting workers, and broader workplace trends.
- William Furney
- William Furney
- William Furney
- William Furney
