Illegal worker will be able to sue her UK employer for discriminatory dismissal
Courts are prevented from assisting those claimants whose claim is founded on an illegal act. The illegality principle is rooted in public policy and is intended to preserve the integrity of the legal system. It has been said that the principle is easy to state but not always so easy to apply in practice.
An employee working under an illegal employment contract may be prevented from bringing certain contractual and statutory employment claims, such as breach of contract or unfair dismissal, since these claims stem from the contract itself. But discrimination rights do not flow directly from the employment contract, so employers could find it more difficult to establish this defence in discrimination cases successfully. A discrimination claim will only be barred for illegality where it is so closely connected with the employee's illegal conduct that the tribunal could not permit the employee to recover compensation without appearing to condone this conduct.
In a recent case, Hounga v Allen, the Supreme Court had to consider whether the illegality defence prevented a young Nigerian woman, who had been illegally trafficked to the UK to work as an au pair, from claiming unlawful race discrimination.
Facts
Hounga entered the UK under a visitor's visa, knowingly obtained under false pretences, to work for Allen. The tribunal found that Hounga knew it was illegal for her to stay in the UK beyond the expiry date of her visa or to take employment. Nevertheless, she remained in the UK to work for her employer for an 18-month period, until she was dismissed. Her employer had promised to pay her and provide her with an English education but, in fact, did neither.
Allen was physically, verbally and emotionally abusive to Hounga. On the night of her dismissal, she was beaten by her employer and thrown out of the house. She was forced to sleep outside and was eventually found the next day and taken into care.
Tribunal
Hounga brought claims against Allen for unfair dismissal, breach of contract, unpaid wages and holiday pay (contract claims) and claims of race discrimination both for harassment prior to dismissal and in relation to the dismissal itself (discrimination claims).
The employment tribunal accepted the employer’s illegality defence and dismissed Hounga's contractual claims, but held that her race discrimination claims were not barred for illegality. She was awarded £6,000 compensation for injury to feelings.
EAT and CA
Hounga unsuccessfully appealed to the Employment Appeal Tribunal (EAT) against her contract claims being dismissed - again they were defeated by the illegality defence. She abandoned these claims, leaving only the claims of discrimination which were the subject of a further appeal to the Court of Appeal (CA). The Court of Appeal held that both the harassment claim and discriminatory dismissal claim were inextricably linked with Hounga's illegal employment and so should fail. Hounga appealed to the Supreme Court.
Supreme Court
The Supreme Court upheld her appeal by a unanimous decision. The question of whether the alleged discrimination was inextricably linked to the unlawful conduct was, in its view, highly subjective. The Supreme Court disagreed with the Court of Appeal, saying that the illegal employment contract was no more than the context in which Allen perpetrated the acts of abuse by which, among other things, she dismissed Hounga from her employment. There was, therefore, not a sufficiently close connection between the illegality and the discrimination to bar her claims.
Comment
The Supreme Court's decision to allow Hounga's claims to proceed was influenced by reasons of public policy and fairness. The court found there was no inextricable link between the illegality of the contract and the claim. Furthermore, the public policy in protecting victims of trafficking outweighed the public policy in barring her claim on the grounds of illegality.
Chris Weaver is an employment law solicitor at Payne Hicks Beach
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