Illegal worker still able to bring discrimination claim related to employment
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21.4.2011 An employee working in the UK illegally may be prevented from relying on contractual and statutory employment rights. For example, it is against public policy to allow a claim for unfair dismissal. However, the position in respect of discrimination claims is not so clear cut. Such a claim will only be barred for illegality where it arises out of, or is inextricably linked with, the employee's illegal conduct so that the tribunal could not permit the employee to recover compensation without appearing to condone that conduct. In Allen (née Aboyade-Cole) v Hounga and another, the Employment Appeals Tribunal (“EAT”) upheld the decision of a tribunal that an employee, who had had no right to work in the UK and entered the country dishonestly, was not prevented by the doctrine of illegality from pursuing a race discrimination claim against her employers. Mr and Mrs Allen offered Miss Hounga work in the UK as a live-in housekeeper. Miss Hounga lived in Nigeria and, in order to allow her entry to the UK, she made an affidavit in the Nigerian High Court using a false name and incorrectly stating that she had received an invitation to visit the UK from her grandmother. She was given a six-month visitor's visa from the British Embassy and arrived in the UK in January 2007, living with and working for the Allens until 17 July 2008, well after her visa had expired. On that date the Allens dismissed her and she was required to leave their house. Miss Hounga brought a number of tribunal claims against the Allens, including for unfair dismissal and race discrimination. The tribunal rejected the unfair dismissal claim but allowed the race discrimination claim to proceed. The Allens appealed against the finding of race discrimination and Miss Hounga cross appealed against the rejection of her unfair dismissal claim. The EAT upheld the tribunal’s decision. The unfair dismissal claim was barred for illegality but the discrimination claim was not. In the EAT's view, this case could be distinguished from the previous case of Vakante v Addey and Stanhope School 2004, in which the Court of Appeal held that a discrimination claim was barred on the ground of illegality. In Vakante, the claimant lied about his immigration status to obtain employment and the employer did not know that the claimant had not been entitled to work in the UK. In this case, however, the employee's illegal conduct had been instigated by her employers, who had wanted her to come and work for them in the UK. The employer and employee had colluded to create an illegal working relationship. It was held that the discrimination did not arise from and was not inextricably linked with the employee's illegal conduct. The tribunal, in awarding discrimination compensation, had not appeared to condone her wrongdoing. The EAT upheld the tribunal’s award of £6,000 for injury to feelings. There was no award for loss of earnings as Miss Hounga did not have the right to work in this country. The EAT stated that the illegality test in discrimination cases was flexible and matters of fact and degree must be considered, including the circumstances surrounding the claim and the illegal conduct, the nature and seriousness of the illegal conduct, the extent of the claimant’s involvement in such conduct and the character of the claim. It is possible that the tribunal and EAT were influenced by Miss Hounga's difficult circumstances when coming to their judgements. The tribunal heard that she had suffered serious physical abuse from Mrs Allen, and commented that this was "probably one of the saddest cases that has come before this tribunal".
This bulletin is for general guidance purposes only and should not be used for any other purpose.
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