can an employee whose employment contract is illegal claim for discrimination?

In June 2012 I reported the decision of the Court of Appeal in Hounga v Allen. Ms Hounga had entered the UK from Nigeria on a false passport, ostensibly to visit friends, but in fact to take up work as an au pair for a Nigerian family. She was about 14 years old and was to be paid her keep plus £50 per month. There was no doubt that the parties knew that the arrangement was illegal. She was not enrolled in a school and although she was provided with bed and board she was never paid her £50 per month or any wages at all.

Following her dismissal after 18 months she made claims for unfair dismissal, breach of contract, unpaid wages, holiday pay and race discrimination. The tribunal found that Mrs Allen had inflicted serious physical abuse on Ms Hounga and had caused her extreme concern by telling her that if she left the house and was found by the police she would be sent to prison because her presence in the UK was illegal. However, all bar the discrimination claim were dismissed on the basis that the contract was illegal. The discrimination claim was successful at tribunal and the employer appealed successfully to the Employment Appeal Tribunal. Ms Hounga appealed unsuccessfully to the Court of Appeal. The somewhat surprising reasoning was that the discrimination was so closely connected to the illegality that the claim had to fail. More controversially it was suggested that her employers would not have treated her so badly had it not been for Ms Hounga’s vulnerability as an illegal worker.

The decision was appealed by Ms Hounga to the Supreme Court, with support from the Anti Trafficking and Labour Exploitation Unit.

The tribunal had found that the circumstances of dismissal were that one evening Mrs Allen was angry when she discovered that the children had not eaten the supper which Ms Hounga had been told to prepare for them. Mrs Allen smacked and hit Ms Hounga. After the children went to bed Mrs Allen attacked Ms Hounga again, threw her out of the house and poured water over her. Mr Allen let her back into the house but then changed his mind and said that Mrs Allen could do whatever she liked to her. Mrs Allen then opened the door, told Ms Hounga to leave and pushed her out. As a result Ms Hounga slept in the garden in wet clothes. She made her way to a supermarket and was then taken in by social services.

illegal working and employment rights

Illegal working and eligibility for employment protection is another topic which seems to have been keeping the courts busy this year. Possibly a reflection of a wider issue concerning the composition of the workforce, some of the working practices which have been disclosed in these cases give serious cause for concern.

In March we reported the decision in Zarkasi v Anindita and anor [2012] UKEAT in which a race discrimination claim by an au pair who had entered the UK to work using falsified documents failed, because the unfavourable treatment related not to her race but to her lack of any right to live or work in the UK. Hounga v Allen & Anor [2012] EWCA Civ 609 is a decision of the Court of Appeal concerning a similar situation, which arrives at the same result by a different route based on earlier Court of Appeal decisions on illegal contracts, including Hall v Woolston Hall Leisure Ltd (2001) and Vakante v Governing Body of Addey and Stanhope School (No 2) (2005).

Ms Hounga, with help from others (she being illiterate), obtained a passport in a false name in Nigeria and entered the UK on a 6 month visitor’s visa, ostensibly to visit her grandmother (who, if she existed at all, did not live in the UK), but in fact to take up a job arranged for her here as an au pair for a family with connections in Nigeria.

more about domestic workers, unfair dismissal and illegal contracts

Last month we reported the decision in Jose v Julio (and other linked cases) concerning au pairs and the minimum wage.
This month sees a new case looking at the position of a domestic worker from overseas and the extent to which she could benefit from UK employment law rights. The complications in Zarkasi v Anindita and another were that (i) this worker entered the UK using false documents obtained by her employer – with her full agreement and co-operation, (ii) she was thus an illegal immigrant with had no legal right to work in this country, and (iii) she believed – or at least was prepared to claim – that she had been the victim of human trafficking.