Wednesday 16 May 2012

Illegality and Discrimination

[Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to Neil Addison of Palmyra Chambers for preparing this case summary]

Can someone who is knowingly working illegally in the UK still put forward a claim of racial discrimination arising from her treatment by her unlawful 'employers'?

Not according to the Court of Appeal in the case of Hounga v Allen [2012] EWCA Civ 609.

Ms Hounga, a Nigerian national, was employed by the Allen family as an au pair. She did not hold a work permit and both she and her employers knew that her employment was unlawful. When she was sacked she brought claims for race discrimination as well as unfair dismissal, breach of contract, unpaid wages and holiday pay. All the claims except for race discrimination were rejected by the ET on the basis that she had no lawful contract of employment.

That problem did not affect her race discrimination claim because it was not dependent on there being a valid and legal contract of employment.

The Court of Appeal was asked to consider, along with other issues, whether Ms Hounga could bring a race discrimination claim even though she was working illegally. In deciding this point the Court analysed two cases Hall v Woolston Hall Leisure Ltd [2001] ICR 99 and Vakante v Governing Body of Addey and Stanhope School (No 2) [2005] ICR 231.

In Hall the claimant was allowed to bring a sex discrimination claim even though she had acquiesed in an ongoing illegallity by her employer whilst in Vakante an illegal immigrant was prevented from bringing a claim.

The Court held that there was no conflict between the two cases, in the case of Ms Hall there was no active participation by her in the illegality merely acquiescence once she realised that her employer was acting illegally whilst in Vakante by contrast he was an active party in the illegality.

Applying the same principles to the case of Ms Hounga she similarly was fully aware that she was not legally allowed to work and, even though the Court accepted that she was a vulnerable person, she nevertheless could not bring a claim which arose out of her illegal conduct.

As Lord Justice Rimer put it "If this court were to allow her to make that case, and so rely upon her own illegal actions, it would be condoning her illegality. That is something the court will not do".

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