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Pickard v Hughes t/a The Tanning & Beauty Kabin - Strict requirements for illegal performance of employment contract [2011] EAT

For a contract of employment to have been performed illegally there must be bad faith on the part of the employer by way of misrepresentation or concealment, as well as positive participation of the employee in the illegality.

Ms Pickard worked for Lynn Hughes t/a The Tanning and Beauty Cabin from 2004 to 2008, running the tanning salon. She had no written contract or statement of terms and conditions. She claimed before the employment tribunal that there had been unlawful deductions from her wages by reason of her employer failing to pay her the national minimum wage. Employment Judge Coles dismissed her case on the basis that it was tainted by illegality: he found that for a 40 hour week Ms Pickard was paid £120 cash in hand. She either knew that tax and national insurance were not paid, or she could not be bothered about whether they were or not. She herself was not paying them. She had colluded with her employer to avoid the payment of national insurance and tax. Both Pickard and Hughes were party to a contract being performed in an illegal manner. It was therefore unenforceable as it was contrary to public policy.

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