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Supreme Court decision: illegal worker's discrimination claim allowed to proceed

The appellant in Hounga v Allen came to the UK as a teenager in 2007 to work as an au pair, using a false identity and on a six month visitor's visa (which did not give her the right to work in the UK).  She suffered serious abuse at the hands of her employer and when, after around eighteen months, she was dismissed she sought to bring various claims, including race discrimination.

At first instance all of Ms Hounga's complaints other than the race discrimination claim were dismissed by the Employment Tribunal on grounds of illegality.  It is an established principle that individuals working under illegal contracts may not enforce certain contractual and statutory employment rights (such as the right not to be unfairly dismissed) from which they would otherwise benefit.  However, the courts have generally been more reluctant to bar claimants from pursuing discrimination claims simply because the contract under which they were working was illegal, unless the discrimination complained of was so closely linked with the employee's illegal conduct that it would be improper to award compensation.  At first instance, the Employment Tribunal allowed Ms Hounga's complaint of race discrimination to proceed and awarded compensation.  This decision was appealed to the EAT, the Court of Appeal and ultimately to the Supreme Court on the basis of illegality.

The Supreme Court disagreed with the Court of Appeal's finding that Ms Hounga's discrimination claim was inextricably linked to the illegal contract, taking the view that the illegal contract was merely 'context'.  Moreover, the Court considered that there was little risk that, in allowing Ms Hounga to receive compensation, it would encourage others in her position to enter into illegal contracts of employment.  Conversely, if Ms Hounga was not permitted to pursue her discrimination claim it might cause other employers of illegal workers to feel that they could discriminate against them without suffering any legal consequences.  The Court also found that Ms Hounga was effectively the victim of human trafficking, and that the UK's duty to protect victims of trafficking should be taken into account.

This seems an entirely sensible decision on public policy grounds, as it would be unattractive to restrict further the rights of illegal workers, many of whom are in particularly vulnerable positions.

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