Employers could face employment tribunal claims from workers without permission to work in Britain under strengthened workplace harassment rules introduced by Labour, prompting accusations that the Government is extending protections to people working illegally.
Updated guidance from the Equality and Human Rights Commission (EHRC) makes clear that an unlawful employment contract does not automatically prevent a worker from pursuing a harassment claim.
The issue has become politically contentious after the Employment Rights Act, championed by former deputy prime minister Angela Rayner, introduced tougher obligations on employers from Friday, requiring them to take “all reasonable steps” to prevent sexual harassment and imposing liability for harassment by third parties.
The EHRC’s guidance sets out a scenario involving a woman without a valid work permit who is harassed by a colleague. Although her employment contract is unlawful, the watchdog says that does not necessarily prevent her from bringing a claim.
“She could have been subjected to the harassment even if she had not been in employment with the company,” the guidance states.
The reasoning is that the alleged harassment is not necessarily dependent on the legality of the employment relationship. An employment tribunal can therefore consider the circumstances of the case rather than automatically dismissing a complaint because the contract is unlawful.
The guidance also warns businesses that they may be held responsible for harassment by customers, freelance workers, contractors and other third parties if they fail to take all reasonable steps to prevent it.
The strengthened protections cover characteristics protected under equality law, including race, sex, disability, age, religion and sexual orientation. Employers found liable could face uncapped compensation.
The changes have fuelled criticism from Conservative politicians, particularly as the Government faces continued pressure to curb irregular migration across the Channel. GB News has reported that more than 10,000 small-boat migrants have arrived in Britain since Andy Burnham became Prime Minister.
Shadow home secretary Chris Philp described the implications of the guidance as “farcical”.
“Labour should be stopping the boats and securing our borders. Instead, they are handing out even more rights to illegal immigrants,” he told the Daily Mail.
However, the Government insists the legislation has not created a new right for people working illegally to bring discrimination or harassment claims. It says the law already protects individuals from unlawful workplace harassment, with cases decided independently by courts and tribunals.
A Government spokesman told GB News: “This is not a new right created by the Employment Rights Act. The law already protects people from unlawful workplace harassment, with individual claims determined by independent courts and tribunals according to each case’s circumstances.
“No one should have to put up with sexual harassment. The changes introduced on Friday mean employers must take stronger action to make sure everyone can feel safe at work.”
The distinction is significant. British law has long recognised that an illegal employment contract does not automatically extinguish a person’s protection against discrimination, provided the claim is not inextricably linked to the unlawful conduct.
Rayner had presented the wider legislation as laying the foundations for a “high-growth, high-skill economy”, insisting: “This Bill is good for workers and it is good for business.”
The Act also provides for enhanced sick pay, parental leave and stronger protection against unfair dismissal.
But the updated guidance puts a fresh spotlight on the reach of workplace equality law, and the obligations businesses must meet regardless of the immigration status of someone alleging harassment.
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