04 August 2014 #Employment
In the rather harrowing case of Hounga v Allen, the Supreme Court has held that the fact that a domestic worker was working illegally in the UK was not a defence to her discrimination.
Miss Hounga is a Nigerian national who came to the UK in 2007 aged 14 to work as an au pair for Mrs Allen under a visitor visa. This visa was obtained, with Miss Hounga’s permission, using a false passport and was valid for 6 months, but did not give her permission to work. Miss Hounga suffered serious physical abuse from Mrs Allen, was threatened that if she complained to the authorities she would be imprisoned and was eventually thrown out of the house and dismissed in 2008. She brought various employment tribunal claims, including that her dismissal was discriminatory on the grounds of race. The tribunal dismissed her claims for unfair dismissal, breach of contract, unpaid wages and holiday pay on public policy grounds (on the basis that her contract was tainted with illegality), but upheld her dismissal-related race discrimination claim and awarded her compensation for injury to feelings. The EAT upheld this decision but it was overturned on appeal by the Court of Appeal.
Miss Hounga appealed and the Supreme Court had to decide whether the Court of Appeal was correct to hold that the illegality defence defeated the complaint of discrimination. Applying the test of whether there is an “inextricable link” between the facts giving rise to the claim and the illegality, the court found that Miss Hounga’s working under an illegal contract was no more than the context in which Mrs Allen perpetrated the various acts of abuse, including her dismissal. In addition, the court found that it would not be appropriate to rely on Mrs Allen’s defence of illegality on public policy grounds, as this might encourage employers to think that they can discriminate against illegal works with impunity. The Supreme Court therefore unanimously upheld Miss Hounga’s appeal and her award for injury to feelings.
Although based on an unusual set of facts, this case highlights the need for employers to take care in dismissing workers who require permission to work in the UK. Even if the employee does not have the right to work in the UK, employers could face a claim for race discrimination (if the employee can show they have been treated less favourably because of their race) and cannot rely on the defence that the employee was working in the UK illegally.