Mr. Hussein claimed that his cousin Mr. Younis worked with him as a member of the family, had no specific job and was not an employee. Mr Younis brought a number of different claims against his cousin, firstly that he had not received any written terms and conditions of employment under the Terms of Employment (Information) Act, 1994-2004, secondly that his working hours were not recorded in accordance with the Working Time Directive and claiming he did not receive holidays, Sunday pay, proper breaks and thirdly, that he was due the national minimum wage for work done. The Rights Commissioner determined he should be paid an award of €91,134.42 but this was never appealed nor paid. Then Mr. Younis obtained an order from the Labour Court directing payment of the unpaid award.
The decision of the Labour Court directing payment of the monies due was judicially reviewed by the employer, who sought to challenge the basis upon which the decision was made. The High Court found that Mr. Younis did not have an employment permit so was not eligible to work in Ireland, and as such could not enforce his contract of employment which was illegal. This caused huge concern for foreign workers in Ireland and led to a change in the law to allow illegal migrants (who through no fault of their own had become illegal) to sue their employers to recover monies due, to prevent employers from taking advantage of foreign staff and breaching employment law. These changes were implemented in the Employment Permits (Amendment) Act 2014.
The Supreme Court has now found that the judgement of the High Court was incorrect. The question of the illegality of the contract between Mr. Younis and Mr. Hussein was not something which the High Court was entitled to consider as a judicial review is limited to assessing the decision making powers of the Labour Court to enforce payment of the award or not. The Labour Court correctly did not consider the merits of the Rights Commissioners determination and this could not be re-opened by the High Court.
In addition, the High Court relied on an old case Martin –v- Galbraith Limited  I.R.37 which says that an illegal contract cannot be enforced by a Court. However, the Supreme Court has now said that statements in older cases, in particular, may have to be reviewed or nuanced in light of the modern regulatory environment and applied with the principle of proportionality in mind. This is helpful as the view of the Supreme Court is that the Courts should look at employment situations in their current context in society and may not be bound to follow this ruling as long as the illegal conduct being performed is not immoral or contrary to public policy.
This is a short summary of recent developments and specific legal advice should be obtained. If you would like any further information in relation to the above, please contact Deirdre Farrell, partner, Amorys Solicitors firstname.lastname@example.org, telephone 01 213 5940 or your usual contact at Amorys