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Posted 12 August 2014
by Martin Laver

Illegal immigrant brings race discrimination case despite illegal nature of the contract

The Supreme Court has unanimously held that a worker who entered the UK illegally, and who remained in the country illegally, was able to bring a race discrimination and unlawful dismissal claim against her employer, overriding the Court of Appeal’s earlier decision that the Claimant could not.

The law
Ordinarily, if a contract of employment is based in whole or in part upon an unlawful act, then the worker will be unable to bring a claim against their employer, if they have to rely upon that illegality. That reflects the general law of contracts.

The case
The Claimant, Miss Hounga who was from Nigeria, entered the UK illegally in 2007. She then commenced work for the Respondent, Mrs Allen, as an au pair and housekeeper. Mrs Allen subsequently evicted the Claimant from the household and in the process dismissed her.

The issue
The question for the Court was whether Miss Hounga was entitled to bring a claim against her employer. The Supreme Court found in the Claimant’s favour, because:

  1. both parties were equally involved in the illegality of the contract;
  2. the illegality and the discrimination suffered were not so closely linked as to defeat the claim;
  3. there are strong public policy considerations, which has been at the centre of the Modern Slavery Bill 2014-2015; and
  4. the UK’s international obligations to protect the victims of human trafficking

The comment
This case can be distinguished from many cases concerning illegality as there were many public policy considerations to be taken into account due to Miss Hounga’s vulnerabilities and exploitation.

However, the case highlights that:

  1. Employment Tribunals continue to be willing to deviate from settled law on contracts where employees are concerned; and that
  2. illegality is still an important factor in determining whether a case can be heard, and if it will, the appropriate award.

For more information please contact our employment team at Broadwalk House, Southernhay West, Exeter EX1 1UA. Call 01392 207020 or email employment@tozers.co.uk

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About the author

Martin Laver

Partner

Partner in the commercial litigation team specialising in disputed trusts and Wills