In Hounga v Allen and anor the Supreme Court has held that a domestic worker could claim race discrimination, despite working illegally in the United Kingdom. The connection between the illegality and the statutory tort of discriminatory treatment was insufficiently close to bar her claim. Furthermore, in the view of the majority of the Court, public policy against human trafficking outweighed any public policy consideration in support of applying the defence of illegality in this case.
H, who is Nigerian, came to the United Kingdom in January 2007 at the age of about 14 to work as an au pair for A. Under arrangements made by A’s extended family, but with H’s knowing participation, she gained entry by providing a false identity, on a visitor’s visa that did not give her permission to work, and which gave her no right to remain in the UK beyond July 2007. She suffered serious physical abuse and was eventually dismissed and evicted from the family home in July 2008. She brought various employment tribunal claims, including that her dismissal was racially discriminatory under S.4(2)(c) of the Race Relations Act 1976 (since superseded by the Equality Act 2010). The tribunal dismissed most of H’s claims on public policy grounds, on the basis that H’s contract was tainted with illegality, but upheld her dismissal-related race discrimination claim and awarded her compensation for injury to feelings. The EAT upheld the tribunal’s decision but it was overturned on appeal by the Court of Appeal, which held that the illegality of the contract of employment formed a material part of H’s discrimination complaint, and that to uphold it would be to condone the illegality.
The Supreme Court has now unanimously allowed H’s appeal. Their Lordships agreed that while the defence of illegality precluded H from enforcing her illegal contract of employment, or claiming unfair dismissal, different considerations applied in respect of claims for the statutory tort of unlawful discrimination. In such cases, there must be a sufficiently close connection between the illegality and the facts giving rise to the claim before any question arises of refusing relief on the basis of illegality. Their Lordships disagreed with the Court of Appeal that H’s complaint was ‘obviously’ inextricably linked to her willing participation in entering into an illegal contract. Rather, the illegal contract provided no more than the context in which A perpetrated acts of abuse, including dismissing H.
Moreover, in the view of the majority of the Court, H’s appeal should be allowed as a matter of public policy, in that it was ‘hard to resist’ the conclusion that H was a victim of trafficking for forced labour. Public policy against trafficking outweighed any public policy concern to preserve the integrity of the legal system. This was particularly so in a case in which the tribunal’s award of compensation did not allow H 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. On the other hand, applying the defence of illegality so as to defeat the award could compromise the integrity of the legal system by appearing to encourage employers to enter into such illegal contracts of employment, and even to believe that they could discriminate with impunity. Accordingly, the Supreme Court allowed H’s appeal.