If an employee works under an illegal contract, he is unlikely to be able to pursue contractual and statutory employment claims. However, the question of whether a discrimination complaint may be pursued is a rather more grey area. In Allen v Hounga and another the EAT considered that, on the extreme facts before them, Ms Hounga was able to proceed with her race discrimination complaint even though she was knowingly illegally employed in the UK.
The court held that Ms Hounga was lured from Nigeria to the UK by the Allen family to work as a housekeeper. She expected to be schooled and have an opportunity of a better life and, to this end, she complied with the Allens’ request that she lie to the authorities that she had been invited to the UK by her grandmother. She was granted a six month visa which expired, after which she stayed on in the UK. The court also stated that Ms Hounga was treated appallingly by the Allen family who finally dismissed her and threw her out of their house. Ms Hounga brought claims for unfair dismissal and discrimination.
Ms Hounga’s unfair dismissal complaint was dismissed on the basis that the law was clear that she could not pursue an unfair dismissal complaint in circumstances where her contract was illegal. However, with regard to race discrimination, the tribunal held that she was not barred from pursuing this claim and that the Allens would not have treated a hypothetical comparator in the same way. She was entitled to recover £6000 for injury to feelings. The EAT agreed with the tribunal and distinguished the case of Vakante v Addey and Stanhope School (where an employee who had lied about his immigration status to get a job could not pursue a discrimination complaint) since in that case, the employer had no knowledge of the illegality.
It is difficult to see where the line should be drawn between the decisions in Vakante and this case and it is tempting to conclude that, given the extremely sad facts in Allen v Hounga, that the EAT strained to distinguish Vakante in order to leave Ms Hounga with some form of compensation.