Court of Appeal restates test for common law illegality in employment claims

In a landmark decision, His Highness Sheikh Khalid bin Saqr al-Qasimi  v Robinson, the Court of Appeal has clarified the correct test for common law illegality as a defence to claims for unfair dismissal, indicating that Employment Tribunals should have regard to the three considerations identified by the Supreme Court in the non-employment case, Patel v Mirza [2017] A.C. 467 and in particular must assess whether denying the claim would be a proportionate response to the illegality. The mere fact that a party to the contract had performed it illegally was not a sufficient test for the doctrine of illegality to apply. Accordingly, the Court of Appeal agreed with the Employment Appeal Tribunal that the Employment Tribunal in this case had erred in law in denying Tracy Robinson’s claims for unfair dismissal and wrongful dismissal on grounds of illegality.

Heather Williams QC and David Stephenson of Doughty Street Chambers acted for Tracy Robinson, instructed by Jacqueline McGuigan, TMP Solicitors LLP.

Judgment can be found here.