Workers employed in Britain without valid permission to work may still be able to bring workplace harassment claims against their employers, according to updated guidance from the Equality and Human Rights Commission (EHRC).
The watchdog’s technical guidance on sexual harassment and harassment at work clarifies that an unlawful employment contract does not automatically prevent a worker from pursuing a harassment complaint. Whether a claim can proceed depends on the relationship between the alleged harassment and the unlawful employment arrangement.
The clarification comes as new provisions under the Employment Rights Act 2025 took effect on 30 October 2026, strengthening employers’ responsibilities to prevent sexual harassment and introducing liability for harassment by third parties.
When can a worker without permission to work bring a claim?
The EHRC explains that an illegal employment contract will not normally prevent a harassment claim unless the alleged wrongdoing is inextricably linked to the illegal conduct.
The guidance illustrates this distinction through two examples.
In one, a migrant worker without a valid work permit experiences harassment from a colleague. The tribunal may hear the complaint because the alleged harassment could have occurred independently of the unlawful employment contract.
In a contrasting example, a worker obtains a school job by falsely claiming to have permission to work in Britain. The worker then complains about being denied promotion and workplace benefits. The guidance treats these complaints as dependent on the unlawful employment arrangement, meaning the tribunal may refuse to hear them.
The distinction is important: a person's immigration or right-to-work status does not automatically remove protection against workplace harassment. However, it also does not create an unrestricted right to pursue every employment-related claim.
Employers face stronger duties to prevent harassment
The Employment Rights Act 2025 strengthens the existing preventative duty under the Equality Act 2010. Employers must now take all reasonable steps to prevent sexual harassment of their employees, replacing the previous requirement to take reasonable steps.
The legislation also introduces employer liability for harassment by third parties, which can include customers, clients and contractors. An employer may be liable where a third party harasses an employee during their employment and the employer has failed to take all reasonable steps to prevent the conduct.
The strengthened preventative duty specifically concerns sexual harassment, while the third-party harassment provision covers harassment related to protected characteristics under equality law.
These changes apply in England, Scotland and Wales.
Political criticism follows the guidance
The clarification has attracted criticism from Conservative politicians, including shadow home secretary Chris Philp, who questioned why people working in Britain illegally should be able to pursue employment claims.
The government has defended the stronger workplace protections, saying employers must take greater action to ensure people can feel safe at work.
However, the EHRC guidance addresses the legal relationship between unlawful employment contracts and harassment claims. It does not create a separate entitlement based on how someone entered the country, nor does it mean every claim by a person without permission to work will succeed.
Previous tribunal case highlights the distinction
The issue has also drawn attention following an employment tribunal case involving Erin Ong, a Malaysian national who worked as a hotel manager at the Fisherbeck Hotel in Ambleside, Cumbria, without permission to work in the UK.
Ong was awarded more than £5,000 after succeeding in claims involving race, sex and disability discrimination. The tribunal considered allegations concerning her working conditions, the impact on her asthma, requests to produce her passport and the circumstances surrounding the end of her employment.
The case illustrates that unlawful working arrangements do not necessarily prevent discrimination claims from being considered. The outcome of each case, however, depends on its specific facts and the connection between the alleged wrongdoing and the unlawful employment arrangement.
For employers, the updated guidance reinforces the importance of addressing workplace harassment consistently. Right-to-work compliance and the responsibility to prevent harassment are separate legal considerations; one should not be treated as a blanket exemption from the other.
