Illegal Worker Unable to Bring Race Discrimination Claim

An employee who was working illegally in the UK was barred from bringing a race discrimination claim.

In Hounga v Allen, H worked as a live-in au-pair and housekeeper. She entered the UK on a six-month visitor’s visa from Nigeria, having sworn an affidavit in a false name stating that she was coming to the UK to visit her grandmother. In fact she was coming to work and her future employer, pretending to be her grandmother, provided her with a phoney letter inviting her to visit her.  H carried on working well after the six month visa expired.  During that time H suffered serious physical abuse at the hands of her employer. When she was dismissed she brought a number of claims, including that her dismissal was race discriminatory.  

The Court of Appeal held that H was prevented by illegality from bringing her race discrimination claim.  The test was whether her discrimination claim arose out of, or was it so inextricably linked with, her illegal conduct that the tribunal could not permit her to recover compensation without appearing to condone that conduct.  That was the case here.  The whole employment relationship had been achieved by H’s dishonest and criminal conduct.  The duty not to discriminate therefore arose out of an employment situation which, without a work permit, was unlawful from beginning to end.  To allow H to rely on her own illegal actions in support of her discrimination claim would be to condone that illegality.  This was particularly so as her case was that she was treated badly because she was an illegal immigrant.  

H had also brought a claim for unfair dismissal. That claim was thrown out by the employment tribunal on public policy grounds on the basis that employees should not be able to bring statutory employment claims which are dependent on a contract of employment having existed between the parties where the contract itself was illegal.  Discrimination claims, on the other hand, are not dependent on the existence of an employment contract and whether a claim for discrimination will be permitted in any case will depend on the level of the employee’ s involvement in the illegality and the extent to which the discrimination claim arises out of or is linked to the illegal conduct.  Where, as here, employees deliberately set out to work illegally in the UK, they will most likely be barred from bringing discrimination claims.