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;

  1. In a case involving the sale of a flat, where both vendor and purchasers have conspired to decrease the purchase price and commensurately increase the price of the chattels so as to pay less stamp duty, could the purchaser sue where the vendor fraudulently represented the property included a roof terrace. Answer: Yes. The parties’ moral culpability in effecting a dishonest apportionment of the price, was trumped by the vendor’s fraudulent representation. This was apparently the “public conscience” test: the question being whether upholding the claim would be an affront to the public conscience in encouraging unlawful conduct of the type perpetrated by the parties.
  2. Could one of the parties make a claim on an interest in a home which she had agreed could be vested in the sole name of her co-habitant, so she could pretend to be the “lodger” and claim state benefits accordingly? Answer: Yes, provided she did not have to rely on the illegality itself (the so called “reliance” test)
  3. Could a hunt saboteur who shouted “You’re f-----g dead” to a local farmer, and hit him with a broken baseball bat, bring a claim for assault and battery, when the farmer took the bat from him and whacked him over the head, causing his skull to fracture?  Answer:  No. His claims were so closely connected or inextricably bound up with his own criminal or illegal conduct, that he could not be allowed to recover without the Court appearing to condone his conduct (The “inextricable link” test).

These “principles” then came to be applied to employment cases. Let me try you out on some of these;

  1. An employee who together with her employer knowingly misrepresented her pay to the Inland Revenue, (so as to pay less tax) fell pregnant and as a result was promptly dismissed. Was she nonetheless able to bring her discrimination claim? Answer: Yes, as there was no “inextricable link” between the facts giving rise to the claim and the illegality.
  2. A teacher who was an asylum seeker, and was not entitled to work in the UK without a work permit, told his School that he did not need one. Could he subsequently proceed with a claim of race discrimination? Answer: No. His employment was unlawful from “top to bottom and from beginning to end”, and his complaint was so “inextricably linked with the illegality of his employment” that to have upheld the claim would have involved the Tribunal in condoning the illegality. 

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.