Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

400px-uk_supreme_court_badgeChris 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 [2014] 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

You can read the Employment Appeal Tribunal’s judgment here and the Court of Appeal’s judgment here.

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.

Conclusion

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.

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.76 Average

124 Reviews

Brittany

I was very grateful for Redmans to treat my case with respect and discretion. At the time, I was very new to London and it was meaningful to have someone on my side and win the case for me. Without any doubt, I would definitely recommend Redmans Solicitors to anyone who is in need of it.

Posted 5 months ago

Jake L

Chris is very professional and calm. Very attentive and patient, been a positive experience having Chris represent me, and would recommend him.

Posted 6 months ago

Anonymous

Excellent service. It was a pleasure to work with Chris H, who is brilliant at what he does and very efficient. Their Senior Associate Rana T. is also very knowledgeable and resolves any queries speedily and efficiently. My issue could unfortunately not be resolved, but that was due to my employer and not the firm. Redmans however did all they could. I would definitely recommend them.

Posted 6 months ago

Anonymous

Very pleasant and quick to deal with. Mnay thanks.

Posted 6 months ago

Anonymous

Easy to get hold of. Quick.

Posted 7 months ago

Owen J

Very helpful, efficient service.

Posted 7 months ago

Anonymous

I am very lucky that I worked with Mr. Chris Hadrill and he managed my case very progressively with an analytical approach and trustfully. Of course with a very positive result. I strongly recommend Mr. Hadrill to any one seeking for a successful result from a highly qualified solicitor.

Posted 7 months ago

Kulbir S

Amazing, quick friendly service from Chris from the start and Caroline. They made me feel at ease during a difficult time, they understood and advised accordingly and I am really happy with the outcome of my case. Will always advise anyone who needs legal advice to contact Redmans, I’m so glad that I did and can confidently say I don’t think any other firm could have handled my case any better. Well done guys, wish you all the best and please keep doing what your doing, simply the best!

Posted 7 months ago

Mark A

Excellent service - rapid and “to the point” advice given to ensure meeting the target time frame

Posted 7 months ago

Anonymous

Chris Hadrill kept me sane during the negotiations with my employer. He was courteous professional and he cared about doing the best he could for me. I will use Redmans again if ever I need an employment solicitor. Excellent service.

Posted 7 months ago

Muhammad Z

Awesome services. Professionals at their best .

Posted 7 months ago

Anonymous

Thanks for the advice and for negotiating a good outcome. Good to have the support at a very stressful time

Posted 7 months ago

Chloe F

My solicitor at Redmans was very helpful and efficient. Really pleased with the smooth service.

Posted 7 months ago

Anonymous

Chris was absolutely excellent. Clear and concise, offering sound advice.

Posted 7 months ago

Tim O

Experienced and competent advisors

Posted 7 months ago

Rachel A

Quick and expert assistance. I would highly recommend Chris for any of your legal needs.

Posted 7 months ago

Joe S

I was very happy with the service provided by Chris and the team at Redmans Solicitors. I felt very comfortable discussing all matters with Chris and am very grateful for all the help and guidance I was given throughout the whole process. I would definitely recommend Redmans Solicitors to friends and family!

Posted 7 months ago

Anonymous

I had a very good experience working with Chris Hadrill during a difficult and emotional time. This held true from the moment I spoke to him on the phone, to the end of the process. Overall, he was attentive, professional and highly supportive. He provided sound advice and clarity. It was the reviews that led me to Redmans! I was very happy to know they were all true. I highly recommend working with Redmans Solicitors. Thank-you to the entire team!

Posted 8 months ago

Anonymous

Good service

Posted 8 months ago

Anonymous

Excellent professional service. Highly recommend.

Posted 8 months ago

Rob O

Very prompt response and I could not fault the service. My solicitor listened carefully to the details of my case and I felt very confident in the advice I was offered. All emails and work done on my behalf with my former employer was of the highest standard and Redmans helped take a lot of the stress out of the situation for me.

Posted 8 months ago