Chris Hadrill, a solicitor in the employment law team at Redmans Solicitors, takes a look in those post at the recent Supreme Court case of Hounga v Allen and another  UKSC 47 and considers the impact of the case on UK employment law.
The facts in Hounga v Allen
The Claimant, Ms Hounga, worked for the Respondent, Mrs Allen, as a child-minder from January 2007 to July 2008. She was brought to the UK by Mrs Allen and her entry into the country and grant of a visitor’s visa to her was achieved by presenting a false identity. Mrs Allen had a part in the procuring of the false identity and the obtaining of the fraudulent visa. This visa expired in July 2007 and Ms Hounga was thereafter resident illegally in the UK, with Mrs Allen aware of the illegal nature of her residence but continuing to employer her.
In July 2008 Ms Hounga made a claim for race discrimination and race-related harassment against Mrs Allen. The Employment Tribunal upheld the claim for race discrimination and awarded Ms Hounga the sum of £6,187 for the injury to her feelings. Mrs Allen appealed this judgment but was unsuccessful at the Employment Appeal Tribunal. However, she was successful in a further appeal to the Court of Appeal, where the Court held that the defence of illegality applied to the claim. Ms Hounga then appealed to the Supreme Court.
The relevant law
All contracts having objects contrary to statutory or common law, or which entail the passing of an illegal consideration, are void. Parties who are engaged in litigation in the Employment Tribunal (normally the employer) may seek to argue that the contract that is the subject of the litigation is void and that therefore the Claimant was not an “employee” for the purpose of claiming his statutory rights (as well as defeating any claim for breach of contract). As claims for, for example, wrongful dismissal and unfair dismissal are founded (respectively) wholly or partially upon the existence of an enforceable contract of employment, a successful illegality defence will defeat these claims.
In respect of a claim for discrimination, it has previously been held that the doctrine of illegality in and of itself cannot defeat a claim for discrimination. However, it is still possible for the Employment Tribunal to consider whether the illegal behaviour was so connected to the illegal conduct by the claimant so as to prevent it from awarding a remedy, as awarding compensation would appear to condone that behaviour, and, if that is the case and the illegality is sufficiently serious, to rule out the claim on wider grounds of public policy.
The Supreme Court decision
The Court of Appeal held that the illegality of the contract of employment formed a material part of Ms Hounga’s claim and that to uphold it would therefore to be to condone the illegality. Ms Hounga appealed to the Court of Appeal on the issue of: “In what circumstances should the defence of illegality defeat a complaint by an employee that an employer has discriminated against him by dismissing him contrary to section 4(2)(c) of the Race Relations Act 1976?”
The Supreme Court answered that the following circumstances could defeat a complaint of discrimination by virtue of illegality: if there was an inextricable link between the complaint and the claimant’s illegal conduct. Lord Wilson found that, in the circumstances, there was no applicable public policy which would be sufficient in itself to substantiate a ground for the defence and, secondly, that 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 (“an inextricable link”) between Ms Hounga’s illegal immigration and the unlawful discrimination so as to bar her claim.
With the greatest of respect to the Court of Appeal, the judgment of the Supreme Court appears to be the correct approach to this case – the illegality in the circumstances concerned Ms 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 – as Lord Hughes put it: “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”.
Chris Hadrill is a solicitor in Redmans’ Employment Department.