Business Immigration Alert: Illegal worker had right to bring a discrimination claim
Published 14 August 2014
The Supreme Court has considered whether a migrant who had no right to work in the UK was prevented by the doctrine of illegality from bringing a claim for race discrimination.
Ms Hounga, a Nigerian national, falsely acquired a 6 month visitors visa to enter the UK. However, on arrival in the UK she obtained employment with the Allen family and lived and worked with them for 18 months. During that time, she suffered serious physical and verbal abuse. In July 2008 Ms Hounga was dismissed.
Ms Hounga brought claims for unfair dismissal and race discrimination. Early in the litigation process it was accepted that the unfair dismissal claim could not succeed on the basis that the employment contract had been entered into illegally. However, the Tribunal and the Employment Appeal Tribunal determined that she could bring a discrimination claim despite this illegality and awarded compensation for injury to feelings of just over £6,000. The Court of Appeal overturned this decision. Ms Hounga appealed to the Supreme Court.
The Supreme Court unanimously upheld the appeal and allowed the race discrimination claim, confirming that a discrimination claim will only be barred for illegality where there is an 'inextricable link' or 'close connection' between the illegal conduct and the discrimination. The Supreme Court concluded that this inextricable link was absent in this case, as the illegal contract was "no more than the context in which Mrs Allen perpetrated the acts of physical, verbal and emotional abuse by which she dismissed Ms Hounga from her employment".
Furthermore, the Supreme Court found Ms Hounga's appeal should be allowed as a matter of public policy, in that it was ‘hard to resist’ the conclusion that she was a victim of human trafficking and that the public policy against trafficking outweighed any other considerations. This was particularly so in a case in which the Tribunal’s award of compensation did not allow the employee to profit from her wrongful conduct or to evade a penalty, and nor would it encourage others in similar situations to enter into illegal contracts of employment.
What this means for employers
In light of this decision, employers should be aware that the Equality legislation also applies to employees with no right to live and work in the UK.
Employers should be aware that this is an extreme case. The most influential factor in this case was the strong public policy arguments. This was a clear case of serious exploitation, bordering on human trafficking, where a young employee (who was also found to have learning difficulties) was subjected to serious physical and verbal abuse, and where the employer had been complicit in the plan to bring the employee to work in the UK illegally. In such a case it would have been hard for the court to reach any other conclusion.
In contrast, in an earlier case where an illegal employee claiming race discrimination was found to have persistently lied to his employer about his right to work, the Tribunal has found that such a discrimination claim must be barred. Consequently, it seems that the conduct of the employee is a salient factor in the determination of whether a discrimination claim should be allowed to proceed despite illegality.
This case certainly does not mean that employers are prevented from terminating the contracts of staff where they know or reasonably believe that the employee is illegally working in the UK. Any discrimination claims arising out of a genuine dismissal for this reason and without any improper treatment of the employee will fail on the basis that any alleged discrimination arising from the decision to dismiss will be closely connected to the illegality.