grounds for revocation of work permit not sufficient for
illegality
According to the decision of the Employment Appeal Tribunal in
San Ling Chinese Medical Centre v Lian Wei Ji a contract
of employment will not be rendered unenforceable on the grounds of
illegality if changed circumstances mean that a work permit could
be revoked – actual revocation of the work permit is required.
Ms Wei Ji, a Chinese national working for San
Ling Chinese Medicine Centre under a student visa, was dismissed
from the San Ling Chinese Medicine Centre and claimed unfair
dismissal on the basis that that the statutory dismissal procedures
(as were in force at that time) were not followed. Her claim was
successful and the Employment Tribunal made an award for
compensation. San Ling Chinese Medicine Centre appealed to the
Employment Appeal Tribunal and argued that the Employment Tribunal
had erred because Ms Wei Ji's contract of employment was tainted by
illegality, meaning that she should not be able to enforce the
contract or claim unfair dismissal. It alleged that the contract
was unlawful because Ms Wei Ji was working full time, even though
her student visa only allowed her to work 20 hours a week during
term time, and because she worked for a lower salary than that
shown on her work permit. The EAT dismissed the appeal because the
Employment Tribunal had made unchallenged findings of fact that Ms
Wei Ji had graduated from her studies and was therefore entitled to
work without restriction for a year after graduation and that Ms
Wei Ji did not collude with San Ling Chinese Medicine Centre in
making a false declaration of proposed salary in order to obtain a
work permit.
This decision follows other judgments which
narrow an employer's ability to rely on illegality as a fair reason
for dismissing an employee.
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