June 25, 2014

Illegality did not preclude discrimination claim

The Claimant was a Sri Lankan national who worked under a work permit from 2006 until February 2009, after which she was made redundant. Her work permit and visa had been renewed in January 2009. She applied for work through an agency and was successful for a role with H3PL although she did not start work until 1st August. Between May and August she attended meetings at the new employer’s office, during which she informed the employer about her immigration status, and during which she was twice sexually assaulted. She started work on the 1st August and repeatedly chased her employer for action on the work permit but nothing happened. However she continued to be assaulted. Two years later the certificate of sponsorship was obtained by H3PL to employ her, but concurrently, they dismissed her. She brought claims for direct sex discrimination and sexual harassment as well as unfair dismissal.

The Tribunal held that it did not have jurisdiction to hear the claims in respect of her pre-employment assaults because she had not established a relationship of identity between her as employee and as employer H3PL. The other claims were rejected on the grounds of illegality because she did not have a valid work permit and it was the employment situation, which was at that point illegal, out of which had arisen the sexual assaults. Discriminatory dismissal claim was also rejected on the same basis.

The EAT allowed the Claimant’s appeal. In respect of the Tribunal’s rejection of the pre-employment assaults on the basis of illegality, the EAT held that nothing illegal had occurred at the time because she was not in employment and applicants for employment can successfully complain of harassment under section 40(1)(b) of the Equality Act. In looking at the claims which arose during employment, and the associated case law, the EAT had to consider whether the Claimant’s allegations were inextricably bound up with the illegal conduct of being employed without a valid work permit. In essence, the EAT distinguished between the cases of Vakante v Governing Body of Addey Stanhope School, where the Court of Appeal rejected a race discrimination claim of a Croatian national who successfully applied for a post as a trainee having stated that his asylum claim was pending but falsely indicating that he did not need a work permit, where it was held that the duty not to discriminate arose "from an employment situation which, without a permit, was unlawful from top to bottom and from beginning to end". The other case considered was Hounga v Allen and another, where the employer succeeded on the defence of illegality to a claim for race discrimination of a domestic servant who entered the UK illegally from Nigeria. She was subjected to serious physical abuse and threats but the Court of Appeal found that she was relying on her own illegal actions to found her claim for discrimination on the basis that she was vulnerable due to being in the UK illegally and her treatment had come about because of this. That case held that, to accept her claim, would be to condone her illegality.

The EAT held that this case was not like those of Vakante and Hounga, where the detriments complained of depended entirely on there being a Contract of Employment, because the employment was not essential for the sexual harassment to take place. Indeed this had taken place prior to the employment commencing in any event.

This decision is interesting because, although the EAT distinguished Vakante and Hounga there is arguably not a huge difference between those cases and the current one. In particular with regard to Hounga, the Claimant was vulnerable to abusive treatment because of her illegal status, and it could be said that the Claimant here was also similarly vulnerable because complaining of harassment would leave her open to the accusation that her employment was illegal if she challenged the treatment.

The Hounga decision was appealed to the Supreme Court in March 2014 and the decision is awaited, which may clarify how cases which are tainted by illegality should be approached.

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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