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Illegal immigrant permitted to present discrimination claim

You may be wondering how this is possible. Don’t worry we will enlighten you. Miss Hounda, a Nigerian national, was brought over to the UK at the age of 14 to work for Mrs Allen as a housekeeper/au pair. Ms Allen promised Miss Hounga the opportunity to be educated and to receive a wage of £50 per month. Ms Allen did not live up to her promises and over a period of two years, Miss Hounga was subjected to both physical and verbal abuse which resulted in her ejection from the house.

Miss Hounga was rescued by Social Services and she presented claims for breach of contract, unpaid wages and race discrimination. She argued that her dismissal was discriminatory because it was on grounds of her nationality.

Courts will not normally enforce a contract where the basis of its performance results in an unlawful or illegal act. The Employment Tribunal found that Miss Hounga could not present her claims because her contract of employment was illegal although the tribunal did find that her claim for discrimination was founded and she was awarded compensation for injury to feelings.

Miss Hounga appealed. The Employment Appeal Tribunal (“EAT”)  agreed with the tribunal. Miss Hounga appealed the EAT’s decision. The Court of Appeal disagreed with the tribunal and the EAT’s decision and held that if Miss Hounga’s claims were not rejected then Ms Allen’s conduct in trafficking Miss Hounga would be deemed acceptable. This was not a satisfactory position. Miss Hounga was supported by the Anti-Trafficking and Labour Exploitation Unit who assisted her in appealing the decision.

The Supreme Court faced difficulty in that the criminal conduct was so closely connected that to allow Miss Hounga to benefit would be to condone Ms Allen’s conduct. The Supreme Court highlighted the fact that it was a balancing act. It was clearly in the public interest to prevent Miss Hounga from presenting her claims in this illegal context, however, in failing to allow her to do so, it was encouraging the conduct of Ms Allen. The Supreme Court held that the defence of illegality failed and despite Miss Hounga’s conduct in the illegal employment contract she did not commit to being physically and verbally abused.

The decision of the Supreme Court will mean that in the context of discrimination claims it will be more difficult to succeed in a defence of illegality. This will mean that individuals who are the subject of trafficking and modern day slavery may be able to exercise the right to redress in the Employment Tribunals.

Posted in: Discrimination

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