The Supreme Court has reversed a decision of the Court of Appeal which had prevented a young trafficked worker from pursuing discrimination claims against her former employers. In doing so the majority has offered a new approach to assessing when an employment tribunal should reject claims because of illegality in the formation or operation of the underlying contract of employment.
Ms Hounga had left Nigeria on a forged passport to take up what she hoped would be modestly paid work with a family in London, combined with the opportunity to be educated at a British school. In reality she was largely confined to the home, deprived of wages, threatened and ultimately dismissed and locked out of the home. She was rescued from a car park by social services.
She brought a number of claims before the employment tribunal. Her contractual claims were dismissed because they were based on an illegal contact of employment, but the employment tribunal upheld one of her discrimination claims. Her right to bring such claims was upheld by the Employment Appeal Tribunal, but rejected by the Court of Appeal in a decision in May 2012.
This case has given the Supreme Court the chance to have a fresh look at the circumstances in which a worker under an illegal contract is entitled to have recourse to the courts. The traditional approach – confirmed by a case in the Court of Appeal almost ten years ago – is that it is not possible to bring claims which are “inextricably linked” with the illegal contract. Under that test it is reasonably clear that claims based directly on the contract – such as unfair dismissal – will not be possible. But it has been more difficult to apply in relation to discrimination claims.
All the judges on the panel agreed that on these facts the alleged acts of discrimination were not inextricably linked with her status as an illegal worker, which merely provided the context. However Lord Wilson (with whom Lady Hale and Lord Kerr agreed) went further. He said that in cases like this the inextricable link test should be replaced by a new approach, which weighed competing public policy considerations. While there was clearly a public policy in preserving the integrity of the legal system and preventing people profiting from illegal acts, this was scarcely engaged in a case like this. Furthermore, to prevent Ms Hounga from bringing her discrimination claims ran “strikingly counter to the prominent strain of current public policy against trafficking and in favour of the protection of its victims.”
While this is hardly a typical discrimination claim, this recent decision of the Supreme Court is of wider interest because it illustrates that, at least in its present composition, it has given itself the freedom to re-think traditional approaches to employment law. Other recent examples include the ruling earlier this year opening the way for LLP members to bring whistleblowing claims, and the Autoclenz decision exactly three years ago which signalled a more flexible approach to determining employment status.