Posted by Richard Woodman, Partner
On 1 September 2016 Withy King LLP merged with Royds LLP. The trading name for the merged firm is Royds Withy King. All content produced prior to this date will remain in the name of the firms pre-merger.
Illegal immigrants can claim discrimination says Supreme Court
A landmark case has paved the way for illegal immigrants to take legal action against their employers for discrimination.
In a largely public policy decision, the Supreme Court has ruled that Mary Hounga, who was brought to Britain to work illegally seven years ago, is still protected by the law. At an earlier hearing her case had been thrown out, but the decision was overturned last week by the highest court in the land.
Judges had heard that Miss Hounga, from Nigeria, had arrived in this country in 2007, aged just 14. She had come on a six month visitor’s visa which did not allow her to work in the UK, or to remain beyond July 2007, pretending to be the granddaughter of London mum Adenike Allen, under arrangements made by the Allen family and of which she was aware.
The teenager was offered £50 a week and the chance to attend school in return for looking after Mrs Allen’s three children. After allegedly suffering abuse and threats, and not receiving the money she was promised, Miss Hounga was thrown out in July 2008, following an argument, and was taken into care after being found alone in a supermarket car park.
Later the same year she took her former employer to a tribunal, claiming unfair dismissal and racial discrimination.
A protracted legal battle followed. Initially Miss Hounga had won a partial victory and was awarded over £6000 in compensation.
But in 2012, that decision was set aside by the Court of Appeal, who argued that allowing claims which arose from an illegal contract to succeed could be seen to condone the fact she had been working in the country illegally.
Now however, the Supreme Court has ruled unanimously that there was not a sufficient link between the immigration offences and her discrimination case to bar her from seeking redress. Their Lordships accepted that she could not rely on the terms of an illegal contract, or bring a claim of unfair dismissal which arose out of the illegal contract; but considered that there were different factors involved in unlawful discrimination. The illegal contract provided no more than the background within which she suffered discriminatory acts. If her complaints of discrimination had been inextricably linked to her willingness to enter into an illegal contract, the question of illegality preventing her from bringing the claims would have been crucial.
The most significant acts aspect of this judgement is, however, the concern about public policy. The majority of the Supreme Court felt that her appeal should be allowed as a matter of public policy because, to do otherwise could encourage employers to enter into illegal contracts, knowing that they would escape any liability, and victims of trafficking in forced labour would have no redress for unlawful treatment. The case was sent back to a fresh employment tribunal to be re-heard.
Anti-Slavery International, a lobby group which has been supporting Miss Hounga, hailed the historic judgement. The charity’s director Aidan McQuade said: “We are happy that the court recognised that trafficked people have the right to claim damages from their traffickers even if their status in the UK is irregular.”
It pays to employ the right employment solicitor