The Employment Appeal Tribunal (EAT) case of San Ling Chinese Medical Centre v Lian Wei Ji has ruled that a contract of employment will not be rendered unenforceable on the grounds of illegality if a change in circumstances means that a work permit could be revoked - in order for the contract to be unenforceable, the permit must actually be revoked.
Ms Wei Ji was a Chinese national working for the medical centre under a student visa. She was dismissed from the centre and later went on to claim unfair dismissal (http://www.ashbycohen.co.uk/unfair-dismissal-law.html) , stating that statutory dismissal procedures were not followed.
Her claim was successful, and Ms Wei Ji was awarded compensation by the Employment Tribunal. The medical centre appealed, claiming that Ms Wei Ji's contract was tainted by illegality, so it could not be enforced and her claim was therefore invalid.
Under the terms of her visa, Ms Wei Ji was only entitled to work 20 hours a week, but she was actually working full-time at the centre, and working for a lower salary than the one shown on her permit.
The EAT dismissed the appeal, finding that the Employment Tribunal had made unchallenged findings of fact that Ms Wei Ji had completed her studies and so was entitled to work without restriction for a year after her graduation. The EAT also found that Ms Wei Ji did not collude with the San Ling Chinese Medicine centre to make a false declaration of her salary in order to obtain a work permit.
This decision comes in the wake of other recent judgements which have narrowed an employer's ability to rely on illegality as a fair reason for terminating the employment of a worker.
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