An illegal immigrant can bring a claim for discrimination despite the illegal nature of the contract, the Supreme Court has ruled.
In Hounga v Allen and another [2014] UKSC 47, Ms Hounga was a Nigerian national who entered the UK illegally having falsely obtained a visitor’s visa. She was employed as a live-in nanny by Mrs Allen and succeeded in her employment tribunal claim for racial discrimination after Allen abused her and then evicted her, effectively ending her employment.
This ruling was upheld by the Employment Appeal Tribunal but overturned by the Court of Appeal which said that, since the illegality of the employment contract formed a material part of Hounga’s claim, to uphold it would be to condone the illegality. However, the Supreme Court ruled that the illegality defence would only apply if there was an “inextricable link” between the complaint and the claimant’s illegal conduct.
Chris Hadrill, employment solicitor at Redmans Solicitors, says: “There was no applicable public policy which would be sufficient in itself to substantiate a ground for the defence and there was no other aspect of public policy to which application of the illegality defence would run counter. Put simply, there was not a sufficiently close connection between Ms Hounga’s illegal immigration and the unlawful discrimination so as to bar her claim.”
Hadrill endorsed the approach taken by the Supreme Court since the illegality in the circumstances concerned Hounga’s ability to lawfully enter into a contract of employment and not to any acts (unrelated to her contract of employment) which took place during her period of employment.
“The illegality of the contract of employment was therefore (rightly) not sufficient to prevent Ms Hounga from bringing a claim for unlawful discrimination premised upon the course of conduct that Mrs Allen had engaged in during the period of Ms Hounga’s employment,” he added.
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