Does Illegality Defeat Discrimination?

Should the defence of illegality defeat a discrimination claim?

No, said the Supreme Court in a judgment handed down in the case of Hounga v Allen and another.

Miss Hounga, a Nigerian national, participated in a plan hatched by members of the Allen family to secure her illegal entry to the UK. Once in the UK, Miss Hounga, who was 14 at the time, commenced working illegally for Mrs Allen as a housekeeper/au pair. She had been promised a wage of £50 per month and the opportunity to go to school. However, over a period of two years, the promised wage and education never materialised and instead Miss Hounga was met with “physical and verbal abuse”, eventually being thrown out of the house. She was rescued by Social Services and commenced tribunal proceedings for breach of contract, unpaid wages and race discrimination. Her claim for race discrimination was on the basis that her dismissal was an act of race discrimination on grounds of her nationality.

The Employment Tribunal (‘the tribunal’) found that the defence of illegality precluded Ms Hounga’s claim of unpaid wages, amongst other claims, which were based on her contract of employment. However, the tribunal upheld her claim of unlawful discrimination in relation to her dismissal and awarded her compensation for injury to feelings.

The Employment Appeal Tribunal (‘EAT’) upheld the tribunal’s decision but the Court of Appeal did not. The Court of Appeal held that the illegality of the contract of employment formed a material part of Miss Hounga’s complaint and that to uphold it would be to condone the illegality. Miss Hounga, supported by the Anti-Trafficking and Labour Exploitation Unit, appealed against the decision.

The Supreme Court said that where “the claimant’s claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct” . The idea of the test is rooted in public policy in that it would not be in the public interest to allow someone to bring a claim arising out of their own illegality.

However, the Supreme Court felt that a balancing act was necessary in considering public policy and that whilst it would not be in the public interest to allow a claimant to bring a claim based on his own illegality, on the other hand, it could also encourage those in the positon of Mrs Allen to enter into illegal contracts. In fact, according to Lord Wilson, it might “engender a belief that they could even discriminate against such employees with impunity.”

Therefore, as a matter of public policy, to allow a claim such as Miss Hounga’s would not compromise the integrity of the legal system or amount to the court condoning the illegality. Lord Wilson also had regard to the UK’s international obligations regarding human trafficking and the strain of current public policy in favour of the protection of its victims.

The Supreme Court went on to hold that on the facts of this case there was no ‘inextricable link’ and as such the defence of illegality failed. Whilst Miss Hounga was aware and indeed participated in the illegal employment contract that was no more than “the context” in which Mrs Allen went on to perpetrate the acts of physical, verbal and emotional abuse, by which, among other things she dismissed Miss Hounga.

In considering whether an individual’s participation in an illegal contract merely forms part of the ‘context’ within which the discrimination takes place or is ‘inexplicably linked’ to the discrimination, the  Supreme Court has curtailed the extent of the defence of illegality in discrimination cases and it will now be more difficult to establish the defence.

This is very likely to fit with the current public sentiment and policy given the recent increase in cases coming before the courts involving human trafficking and ‘modern slavery’. At the very least, it will mean that traffickers who mistreat their victims on the grounds of race, sex or disability, for example, will not be able simply to walk away from liability if faced with a tribunal claim.