Can the Defence of Illegality Operate to Defend Complaints of Discrimination?
In the case of Hounga v Allen the Supreme Court set out to determine whether Miss Hounga, as an illegal immigrant without permission to work in the UK, was prevented from bringing a tribunal complaint.
Miss Hounga arrived in the UK in January 2007, having been granted a visitor’s visa for a period of 6 months. The visa was granted on the back of a falsely obtained Nigerian passport in which Miss Hounga stated that she was 20 when she was, in fact, 14.
Mrs Allen, Miss Hounga’s employer, had been complicit in the arrangements made to obtain the false passport. The agreement was that Miss Hounga would come to the UK to work for Mrs Allen as a sort of au pair. Mrs Allen had promised that she would arrange for Miss Hounga to be enrolled in a local school and would pay her £50 per week in addition to board and lodgings. Neither of these promises were ultimately fulfilled and apart from a few trips out of the house, Miss Hounga remained inside the house caring for Mrs Allen’s children and carrying out various domestic duties.
In July 2008, Mrs Allen threw Miss Hounga out of the family home after a disagreement. She attacked and beat her and poured water over her. Miss Hounga slept in the garden that night and on being refused entry to the family home the next morning, made her way to a supermarket car-park where she was found and taken to the social services department of the local authority.
In December 2008, Miss Hounga’s tribunal claim for unfair dismissal, breach of contract, unpaid wages and holiday pay and race discrimination was issued. The race discrimination complaint related to harassment prior to the dismissal and to the dismissal itself.
The Employment Tribunal dismissed all but the race discrimination complaint concerning the dismissal. The discrimination during employment was dismissed on the basis that Miss Hounga had failed to follow the statutory grievance procedures in force at the time. In relation to the other claims, they were dismissed as a result of the defence of illegality, whereby a person is unable to base a contractual complaint on a contract that is illegal in nature. As an illegal immigrant without permission to work in the UK, Miss Hounga’s employment with Mrs Allen was clearly against the law.
The EAT upheld the tribunal’s decision, the unfair dismissal claim was barred for illegality whereas the discrimination claim was not. The Court of Appeal, however, overturned their decision relating to the discrimination, holding that the discrimination complained of was inextricably linked with the illegal contract and should not, therefore, be allowed to proceed.
The Supreme Court considered the authorities concerning illegality of contract and pointed out the difference between contractual claims (when the defence was capable of defeating a claim) and tortious claims (to include claims of discrimination) which was a more “problematic area”. It was determined that whilst the underlying test remains one of public policy (in particular, whether it is necessary for the Claimant to rely on the illegality), the test which has evolved requires an inextricable link between the facts giving rise to the claim and the illegality. This, it was said, was a highly subjective test.
On the facts of this case, it was held by the Supreme Court that the inextricable link was absent and that the illegal contract was “no more than the context in which Mrs Allen perpetrated the acts of physical, verbal and emotional abuse by which, amongst other things, she dismissed Miss Hounga from her employment”. Therefore, the race discrimination case could be considered by the Employment Tribunal despite the fact that she was employed illegally.
The potential human trafficking aspect of Miss Hounga’s arrival in the UK was discussed as part of the Supreme Court’s judgement and it was noted that “..if Miss Hounga’s case was not one of trafficking on the part of Mrs Allen and her family, it was so close to it that the distinction will not matter…”. It seems clear, therefore, that the public policy aspect of the illegality of contract test was important in this case.
The case also serves as a reminder that illegal contracts will not necessarily be defeated by the defence of illegality.