The Supreme Court had to consider whether an immigrant working under an illegal employment contract could enforce their employment rights in the case of Hounga v Allen  UKSC 47.
Briefly, this case concerned a young woman who had been brought from Nigeria to the UK knowingly under a false visa at the age of 14 in order to live with a family and care for their children as an au pair. However, the employment relationship broke down and the girl was evicted from the family home and dismissed from her role. The girl claimed wrongful dismissal, unfair dismissal and discrimination relating to race.
The Employment Tribunal concluded that the claims arising out of breach of the employment contract, namely wrongful dismissal, unfair dismissal, unpaid wages and holiday pay, could not succeed because of the illegality of the employment contract. However, the Tribunal did not find that the discrimination claim was also precluded on this ground, as the tort of discrimination was not sufficiently closely connected to the illegal employment contract. However, this finding was overturned by the Court of Appeal, who decided that all of the claimant’s complaints should be barred because of her willing participation in an illegal employment contract.
The Supreme Court unanimously agreed with the Employment Tribunal and overturned the decision of the Court of Appeal. In his leading judgment Lord Wilson stated that the ‘defence of illegality rests on the grounds of public policy’. The claimant was not benefitting from her wrong in entering the employment contract by succeeding in her discrimination claim. Instead, the Tribunal’s award for the discriminatory conduct was for the injury to feelings caused by the abusive nature of her dismissal. As a crucial part of a test that is based on public policy, Lord Wilson then considered the other side of the coin. Would the application of the defence of illegality compromise the integrity of the legal system by encouraging those in the situation of the respondent to enter into illegal contracts of employment? Lord Wilson thought it would, as ‘it might engender a belief that they could even discriminate against such employees with impunity’.
Lord Hughes agreed that the illegality defence should fail, but on the grounds that ‘there is insufficiently close connection between her immigration offences and her claims for the statutory tort of discrimination, for the former merely provided the setting or context in which that tort was committed, and to allow her to recover for that tort would not amount to the court condoning what it otherwise condemns’. This is a more conservative and traditional approach to the illegality defence. By allowing the discrimination claim, the court is not condoning entering into illegal employment contracts. It is merely compensating a party for injury to feelings caused by discrimination in the context of an employment relationship.
This decision confirms that anyone operating under an illegal employment contract cannot enforce their contractual employment rights, such as unfair and wrongful dismissal. However, recourse to a tribunal for for vulnerable employees, such as illegal immigrants, may still be available through a discrimination claim.
Rachel O’Connell, Solicitor & Director, Just Employment Ltd.