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Should an employee who is employed illegally or who, together with his employer, is acting unlawfully, nonetheless, when things go wrong, be able to bring a discrimination claim? The recent Supreme Court decision in Hounga v Allen provides some insight.
In the past there have been a whole variety of “tests” for resolving this sort of conundrum. They have come in a series of cases that are not employment related, but which read like a morality quiz. For example;
These “principles” then came to be applied to employment cases. Let me try you out on some of these;
Now we have a decision from the Supreme Court in the latest of these cases. The facts (in Hounga v Allen) are appalling. Whilst in Nigeria, Ms Hounga, around 14 years of age at the time, together with her prospective employer, played out a plan to mislead the immigration authorities into believing they were related. Ms Hounga obtained a false passport, bogus entry clearance and an erroneous visitor’s visa and came to live and work in this country as a sort of “au-pair” for Mrs Allen. She did so expecting to be provided with bed and board, an education and £50 per month in wages. She got the bed and board, but was never enrolled in a school and was never paid any wages. One day in July 2008 Mrs Allen came home to discover her children had had no supper. One thing led to another, and she came to assault Miss Hounga (not for the first time), and throw her out of the house. She made her way to a supermarket car park, from where she was taken in to Social Services by the local authority.
Five months later she brought various claims, one of which went all the way to the Supreme Court. This was a claim of race discrimination as a result of her dismissal. The Employment Tribunal had awarded her £6,187 compensation for injury to feelings, but the Court of Appeal had ruled that the illegality debarred Miss Hounga from succeeding, her complaint being inextricably linked to her own unlawful conduct. The Supreme Court has now taken a different view. In doing so a majority of the Supreme Court relied upon that old friend – “public policy”. There was clearly public policy against “trafficking” and in favour of the protection of its victims. The other Justices believed there was an insufficiently close connection between the immigration offences that Miss Hounga had committed, and her claims for discrimination, such that she should be allowed to succeed in her claim.
For me, this case proves that in these impossible situations, where both sides have done wrong, it is important to keep hold of your moral compass, and consider first whether the wrong that has been committed is directly relevant to the issue in dispute, and secondly, if in all conscience it would be wrong to deny the Claimant, despite the surrounding circumstances.
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