| Claim Type | An employee with irregular immigration status can still pursue discrimination claims for disability, race, and sex discrimination under the Equality Act 2010, even if the employment contract itself is unlawful due to immigration non-compliance. |
| Key Statute | Equality Act 2010 (s.39); Employment Rights Act 1996; Immigration, Asylum and Nationality Act 2006 |
| Key Finding | Employment judge ruled that discrimination allegations were “not inextricably linked” to illegal working arrangements, meaning workers retain protection under employment law regardless of visa status. |
| Employer Liability | Employers cannot assume that a worker’s lack of immigration status negates their wider employment law obligations. Immigration non-compliance will not shield employers from discrimination liability. |
| Practical Implication | Employers must ensure HR and legal teams adopt a joined-up approach to right-to-work compliance and fair treatment of all staff, avoiding the assumption that immigration issues negate discrimination law. |
| Damages | Remedy hearing scheduled to determine compensation. Claims for unpaid wages and unfair dismissal were dismissed as the contract was “tainted with illegality,” but discrimination claims succeeded. |
The Case: Erin Ong v. Fisherbeck Hotel
Background and the contract issue
Erin Ong, a Malaysian national, was offered a role as hotel manager at the Fisherbeck Hotel in Cumbria on a salary of £28,000 per annum. She entered the UK on a visitor visa in May 2023 and never received a formal contract of employment, payslips, or any wages during her time at the hotel.
The director, Zhiyong Zhou, told Ong she would receive a work permit after a month if both parties felt suitable. However, right-to-work checks were never properly conducted. Zhou kept copies of employees’ passports because he knew “something was required” but could not explain what those requirements actually were.
The Fisherbeck Hotel was subsequently fined £10,000 by the Home Office in 2024 for failing to conduct right-to-work checks and employing illegal workers. Yet the tribunal found this illegality did not automatically extinguish Ong’s protection under employment discrimination law.
The discrimination claims that succeeded
Employment judge Susan Dennehy found in favour of Ong on three key discrimination grounds. First, disability discrimination: Ong had suffered from asthma since childhood. She found her housekeeping duties (involving feather duvets and cleaning chemicals) triggered her condition. When she requested sick leave following an asthma attack, her application was denied. The judge ruled that Zhou’s assertion that she “did not look disabled” and that she was stronger than him amounted to unfavourable treatment based on disability.
Second, race discrimination: Ong was the only Malaysian employee at the hotel and the only staff member required to show her passport in order to be paid. The judge found this to be unfavourable treatment on the grounds of race.
Third, sex discrimination: The judge noted that Zhou had a history of paying female staff late. Ong’s non-payment, combined with the other discriminatory conduct, amounted to sex discrimination.
Why the illegality did not shield the employer
The critical legal finding was Judge Dennehy’s statement: “While the employment gave rise to a practical opportunity for the alleged acts of discrimination to be committed, I find that the allegations of disability, race and sex discrimination were not inextricably linked to illegal conduct.”
This distinction is vital. The tribunal was saying that whilst the employment contract itself was unlawful (because Ong had no right to work), the discriminatory behaviour within that employment was a separate matter and remained actionable under the Equality Act 2010.
Claims for unfair dismissal, unpaid wages, and holiday pay were dismissed because the contract was “tainted with illegality.” But discrimination claims stood on their own legal footing.
What This Means for UK Employers
Immigration compliance and employment law are not a “get out” clause
Kasia Kingsmill, partner and head of immigration at Brecher, provided expert commentary on the case: “The case is an important reminder that employers cannot assume a worker’s immigration non-compliance somehow negates wider employment law obligations. A worker’s lack of immigration status will not shield employers from liability where discriminatory conduct has taken place.”
The takeaway is clear: having identified that an employee lacks right to work does not absolve an employer of the obligation to treat that employee fairly and without discrimination. The illegality of the contract does not create a parallel illegality in the discrimination claim itself.
A joined-up approach is essential
Employers must ensure that HR and legal teams work together to manage both right-to-work compliance and fair employment practices. Immigration compliance procedures should be handled carefully, consistently, and sensitively. Training should cover not only what right-to-work checks are required but how to conduct them fairly and without discriminatory undertones.
In Ong’s case, requiring only her to show her passport to be paid (rather than all employees) created a racial discrimination issue. Proper procedures, applied consistently to all staff regardless of background, would have minimised this risk.
Practical Steps for Employers
Right-to-work compliance procedures
Conduct proper right-to-work checks for all employees, applied consistently. Document what checks have been done and retain evidence. If you identify that an employee lacks right to work, seek legal advice immediately rather than assuming you can simply dismiss them without liability. The circumstances may give rise to discrimination or unfair dismissal claims even if the contract is unlawful.
Do not use immigration status as a substitute for fair conduct. If an employee is working for you, treat them fairly regardless of visa status, or face potential discrimination claims.
Disability and reasonable adjustments
If an employee discloses a disability or health condition, take it seriously. Denying sick leave or dismissing an employee without consideration of their disability can amount to disability discrimination, even if other grounds for dismissal might exist. Consider what reasonable adjustments might be needed.
Consistent treatment of all staff
Apply all employment policies and payment procedures consistently to all staff. Do not single out employees from particular nationalities or backgrounds for special treatment (such as requiring only them to show their passport). Such selective application can constitute race discrimination.
The Remedy Hearing
A remedy hearing was scheduled for 1 June 2026 to determine the amount of compensation payable to Ong. Whilst specific damages have not yet been reported, discrimination cases of this nature typically result in awards covering not only financial loss but also injury to feelings and potentially aggravated damages if the employer’s conduct was particularly serious.
The case has attracted significant attention from immigration and employment law specialists precisely because it clarifies an important point: immigration enforcement and employment law operate in overlapping but distinct spheres. Employers must comply with both, and breaching one does not excuse breaching the other.
Q: Can an employee with no right to work bring a discrimination claim?
Yes. The courts have established that whilst certain claims (like unfair dismissal or unpaid wages) may be barred by the illegality of the contract, discrimination claims under the Equality Act 2010 can succeed even if the employee’s immigration status was unlawful. The key is whether the discriminatory treatment itself was “inextricably linked” to the illegality, which courts assess on a case-by-case basis.
Q: What is “inextricably linked” and why does it matter?
Inextricably linked means so closely connected that they cannot be separated. If a discriminatory act flows directly and unavoidably from the illegality (e.g. dismissal purely because the visa expired), it may be barred. But if the discriminatory treatment is a separate matter (e.g. treating a disabled employee unfairly), it remains actionable even if the underlying employment is unlawful.
Q: What should I do if I discover an employee has no right to work?
Seek immediate legal advice. Do not assume you can simply dismiss them. Depending on the circumstances, dismissal might itself amount to unfair dismissal or discrimination. Right-to-work compliance and fair employment law must be addressed in tandem. Consider whether UKVI referral is necessary and what fair notice or settlement might be appropriate.
Q: Can disability discrimination claims proceed even if the employment is unlawful?
Yes, as this case demonstrates. If an employee discloses a disability and is treated unfavourably because of it (e.g. denied sick leave, exposed to triggers, or made to feel their disability is not genuine), a discrimination claim can succeed independently of any immigration status issues.
Q: What are the practical risks of selective immigration compliance procedures?
Applying right-to-work checks or payment conditions selectively (e.g. only to employees of certain nationalities) can itself constitute race discrimination. All procedures must be applied fairly and consistently. If you need to conduct additional checks on specific individuals, ensure this is based on objective, non-discriminatory criteria applied to all staff in similar circumstances.
Q: What compensation might Ong receive?
Discrimination awards typically include compensation for financial loss (e.g. lost wages), injury to feelings, and potentially aggravated damages. The specific amount depends on the remedy hearing outcome. Awards in discrimination cases involving multiple protected characteristics (disability, race, sex) and serious misconduct tend to be substantial.
This article is intended for informational purposes only and does not constitute legal advice. For specific advice relating to your circumstances, please contact Wolf Law directly to arrange a consultation with one of our qualified solicitors.
Related reading:
External legal resources:
- Equality Act 2010
- UK Visas and Immigration (UKVI)
- Law Society of England and Wales
- ACAS (Advisory, Conciliation and Arbitration Service)
