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Day 2 of Robinson v Al-Qasimi has just started with a bang, with Singh LJ suggesting the illegality defence should perhaps only bite when there is illegality in the performance of the contract rather than anything wider than that. #ukemplaw
Perhaps a chink of light for the employer on illegality (after a Day 1 where the court appeared to lean heavily against). Singh LJ raises the question whether the illegality defence necessarily loses power following a gap of time between the illegality & the basis of claim.
Moving on to the interim relief appeal, somewhat frighteningly, the CA baulk at the suggestion that the word 'likely' in the interim relief provisions of the ERA means 'pretty good chance', with Singh LJ surprised it is even as high as 'more likely than not'. #ukemplaw
Baker LJ suggests his own test to replace the statutory test - a lower threshold than 'pretty good chance' but with recoverability. It appears he'd quite like to rewrite the statutory provisions given the chance (which he won't be in this case).
I think it fair to say the Claimant is facing a heck of an uphill struggle on the interim relief part of the appeal. The panel are heavily against it. Scuppered by the delays at Croydon ET that all #ukemplaw-yers know only too well.
