Labour & European Law Review Weekly Issue 274 21 June 2012
There is a general rule that employees cannot bring most Tribunal claims if the contract itself is illegal, but what about discrimination claims? In Hounga v Allen, the Court of Appeal said that applicants cannot bring a claim if it is inextricably linked with their own illegal conduct.
Ms Hounga, a Nigerian national, started work for the Allen family in the UK as an au pair in January 2007. Mrs Allen had dual British and Nigerian nationality and members of her family still lived there.
Prior to arriving in the UK, Ms Hounga swore an affidavit before the High Court in Nigeria in which she gave her name as Aboyade-Cole, Ms Allen’s maiden name. She was issued with a six-month visitors visa which did not give her permission to work. On arrival in the UK she told immigration officers that she was on holiday, visiting her grandmother.
When she was dismissed in July 2008 (long after the visa had expired), she brought a variety of claims including unfair dismissal, breach of contract, unlawful deductions from her wages; holiday pay; and race discrimination.
Tribunal and EAT decisions
The Tribunal said that, although the Aboyade-Coles in Nigeria had “masterminded” the plan for Ms Hounga to work illegally in the UK, she knew that she only had permission to enter the country for six months.
The Tribunal rejected all the claims, bar one, on the basis that her contract was illegal. It accepted, however, that Ms Houng had been subjected to unlawful race discrimination as she had been ill treated by the Allens who would not have dismissed a British-based person working for them.
Ms Hounga and Mrs Allen appealed to the Employment Appeal Tribunal against the different findings that had gone against them, but it upheld all the Tribunal’s decisions.
Mrs Allen asked the Court of Appeal (among other things) to decide whether her former employee could bring a race discrimination claim, even though she was working illegally.
Court of Appeal decision
To answer the question, the Court considered the cases of Hall v Woolston Hall Leisure Ltd and Vakante v Governing Body of Addey and Stanhope School.
Hall stated that the correct approach for Tribunals was to consider “whether the applicant's claim arises out of or is so clearly connected with or inextricably bound up or linked with the illegal conduct of the applicant that the court could not permit the applicant to recover compensation without appearing to condone that conduct.”
In Vakante, the court made clear that employees could not bring a claim if they had played an active role in the illegality.
In this case, the Court said that Ms Hounga’s discrimination claim was based on the fact that Mr and Mrs Allen had taken advantage of her vulnerable situation to treat her badly. However, that meant that she was relying directly on the fact that she had been working illegally for the Allens to sustain her claim.
“To the question whether her discrimination claim arose out of, or was clearly connected or inextricably bound up or linked with her own illegal conduct”, there was only one answer, said the court.
“In my judgment her claim to recover compensation for dismissal discrimination is plainly barred by the principles explained in Hall's case and applied in Vakante's case. If this court were to allow her to make that case, and so rely upon her own illegal actions, it would be condoning her illegality. That is something the court will not do”.
This is a very disappointing outcome for a young and vulnerable woman who was clearly exploited by her employer. The case underlines the very limited protection available to migrant workers if they have irregular immigration status. Effectively the fact that Ms Hounga worked in the UK illegally left her with no legal recourse.