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Illegality defence in discrimination claims

View profile for Chris Dobbs
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Hounga v Allen

The Supreme Court has held that an illegal immigrant can bring a claim for discrimination, despite the fact the contract of employment is illegal.

Miss Hounga, a Nigerian national, arrived in the UK in January 2007 having falsely obtained a visitor’s visa. She had no right to work in the UK and, after July 2007, no right to remain. However, she was employed by Mrs Allen as a live in nanny and lived in the Allen household. Miss Hounga was mistreated and, in July 2008, she was evicted from the household, effectively dismissing her from employment.

Miss Hounga succeeded in a claim against Ms Allen for unlawful discrimination in relation to the dismissal which was subsequently upheld by the EAT. However the Court of Appeal upheld an appeal by Mrs Allen accepting that the illegality of the contract formed a material part of Miss Hounga’s complaint and to uphold it would condone illegality. Miss Hounga appealed.

The Supreme Court upheld the appeal as they said there was an insufficiently close connection between Miss Hounga’s immigration offences and her claim for discrimination as the former merely provided the setting or context in which that tort was committed.

In Practice

This case proves there is no defence to a discrimination claim by arguing the employee was employed illegally. It reinforces the position that it is an employer’s responsibility to ensure someone is employed legally by carrying out the requisite checks upon recruitment. This is true, even if the employee is working knowing they are doing so under an illegal contract. Employment Partner Kate Fretten says, “Employers should check that all their members of staff have the right to work in the UK by obtaining the relevant documents from them.”

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.