Illegality as a fair reason for dismissal

When it comes to dismissals, employers must always ensure they are relying on one of the five potentially fair reasons under the Employment Rights Act 1996, such as misconduct, redundancy, capability or some other substantial reason. One of the less commonly used – but equally valid – reasons is illegality.

Illegality arises when continuing the employment relationship would result in a breach of the law.

A recent tribunal case, Ogumodede v Churchill Contract Services, serves as a useful example of how illegality can operate as a fair ground for dismissal.

What is “illegality” in employment law?

Illegality (also referred to as statutory restriction), in the context of dismissal, means that employing a worker would be unlawful under UK legislation. This may occur where:

• The employee does not have the legal right to work in the UK.
• Their role requires a licence or certification (such as a driving licence, security clearance, or professional registration) that they no longer hold.
• Continuing employment would otherwise breach a statutory requirement.

Employers are not obliged to continue employing someone if doing so would contravene a legal duty or restriction, and expose them to criminal sanctions or regulatory penalties.

The Case of Ogumodede v Churchill Contract Services

Ms Ogumodede worked for Churchill as a cleaner on two separate contracts — one at Deutsche Bank (day work) and another at the Houses of Parliament (night work), which had transferred to Churchill under TUPE in May 2024.

The combination of the two roles meant she was consistently working extremely long hours, 77.5 hours in a week, with insufficient rest breaks between shifts. This pattern clearly breached the Working Time Regulations (which sets maximum working time and minimum rest requirements).

Churchill suspended Ms Ogumodede and ultimately dismissed her from the Houses of Parliament contract. The employer’s concern was that continuing her dual contracts under those conditions would breach statutory obligations and raise health and safety risks.

The Employment Tribunal accepted that the dismissal was fair. It found that Churchill could not lawfully continue employing Ms Ogumodede under the Houses of Parliament contract given the statutory restrictions. The dismissal fell within the “band of reasonable responses” available to an employer.

Key considerations for employers when “illegality” is a potentially fair reason for dismissal

1. Act reasonably: Although illegality can provide a fair reason for dismissal, tribunals will still consider whether the employer acted reasonably in treating it as sufficient grounds for dismissal. In Ogumodede, Churchill investigated the matter, consulted with the employee, considered the circumstances, and documented its decision-making before dismissal.
2. Explore alternatives to dismissal: Where possible, employers should explore alternatives to dismissal. In this case, Churchill showed Ms Ogumodede a list of vacancies to see if there were any other roles that would not breach the 11-hour rest rule and offered her the opportunity to continue to work 6.00pm to 9.00pm in the Houses of Parliament.
3. Document consistently and apply policies fairly: Consistent application of policies and clear documentation of the decision-making process remain essential. This ensures that if challenged, the employer can demonstrate that dismissal was both necessary and reasonable.

The Ogumodede case highlights that illegality can be a robust fair reason for dismissal, provided the employer can demonstrate:

• Continuing the employment would break the law.
• The dismissal was reasonable, taking into account all the circumstances.
• A fair and reasonable process was followed before dismissal.

Employers must balance their legal obligations with fair treatment of employees, but where the law is clear – as in cases where an employer is in breach of statutory obligations – dismissal will often be the only practical and lawful option.