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22 October 2014

Illegal immigrant can claim race discrimination

In a case that examined the circumstances in which a defence of illegality should defeat a complaint by an employee that their employer has discriminated against them on the ground of race in dismissing them from their job, the Supreme Court has ruled that a woman who had been working illegally in the UK was entitled to bring a claim.

In the case of Hounga v Allen and Another, Ms Hounga, who is of Nigerian nationality, arrived in the UK from Lagos in January 2007 under arrangements made by Mrs Allen, who is of joint Nigerian and British nationality, whereby Ms Hounga claimed to be older than she really was and pretended to be the granddaughter of Mrs Allen's mother. She was granted a visitor's visa for six months.

However, she went to work for Mrs Allen 'as a sort of au pair', helping to look after her three small children and doing housework, until July 2008, when she was evicted from Mrs Allen's home and dismissed from her post.

Ms Hounga brought a variety of Employment Tribunal (ET) claims against Mrs Allen, including claims for unfair dismissal, breach of contract, unpaid wages and holiday pay as well as claims under the Race Relations Act 1976. The ET dismissed the contract claims on the basis that Ms Hounga had entered into a contract of employment knowing that it was illegal for her to do so and the defence of illegality operated so as to defeat those of her claims that were based on it.

However, the ET accepted that Mrs Allen had subjected her to 'serious physical abuse' and frightened her by telling her that if she left the house she would be sent to prison as her presence in the UK was illegal. The ET found that she was dismissed because of her vulnerability in this regard and upheld her complaint of discrimination in relation to her dismissal. The Employment Appeal Tribunal upheld the ET's decision.

Mrs Allen succeeded at the Court of Appeal, which held that the illegality of Ms Hounga's contract of employment 'formed a material part of her complaint and that to uphold it would be to condone the illegality'.

Ms Hounga took her case to the Supreme Court and won. In the Court's view, the illegality in this case did no more than provide a context for the events which gave rise to the claim, and there was not a sufficiently close connection between Ms Hounga's immigration offences and the discrimination complained of to bar her claim.

Contact Hannah King by calling 01753 278659 or emailing employmentlaw@bpcollins.co.uk for advice on any discrimination law matter.

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