Posted by Gemma Ospedale, Partner
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Illegal immigrant can claim race discrimination
In a case which has been reported in the Update as it has made its way through the lower Courts, Hounga v Allen and another has now reached the Supreme Court. The case concerned the illegal immigrant who brought claims for race discrimination and unfair dismissal when she was abused and sacked from her position as an au pair. The Court of Appeal had previously overturned the EAT decision that the Claimant could not bring claims of race discrimination and being dismissed for a discriminatory reason because her contract was illegal and to allow her to bring claims on the back of an illegal contract would be to condone the illegality.
However the Supreme Court has overturned the Court of Appeal decision and allowed the Claimant’s appeal. The facts were that the Claimant came to the UK at the age of 14 to work as an au pair for the Allen family. She entered the UK on a false identity and a visitors visa which did not allow her to work and gave her no right to remain in the UK beyond July 2007. She was aware of the arrangements made by the Allen family to facilitate her entry to the UK.
She suffered serious physical abuse and was eventually sacked.
Most of her claims were dismissed by the Tribunal on public policy grounds on the basis that her contract was tainted with illegality, although the dismissal related race discrimination claim was allowed and she was awarded compensation for injury to feelings. When the employer appealed to the EAT, they upheld the Tribunal decision but this was overturned by the Court of Appeal, hence the case coming before the Supreme Court.
The Supreme Court agreed that the defence of illegality would prevent her from enforcing her illegal contract or claiming unfair dismissal but that different considerations apply to claims such as the statutory tort of unlawful discrimination. The Supreme Court held that there must be close enough connection between the illegality and the facts giving rise to the claim, before the matter of whether or not the claim should be allowed to be brought can be considered. The Supreme Court did not consider that the illegality of the contract and the discrimination suffered by the Claimant were inextricably linked on the basis of her participation in entering into an illegal contract (she knew about the subversive efforts of the family to bring her into the country). The Supreme Court held that the illegal contract was no more than a background to the abuse which she suffered and therefore allowed her appeal.
Of probably more general interest is the public policy point here. The Supreme Court were clearly concerned that, to prevent someone from securing a remedy for unlawful treatment because their contract was illegal, would encourage perpetration of illegal contracts by unscrupulous employers who would know that individuals engaged on illegal contracts had no rights to enforce. It appears the Supreme Court were concerned that this might encourage some employers to behave as they wish knowing there was no redress for the hapless employee.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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