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.

Whilst working here she was provided with her keep and paid £50 a month. She was dismissed after 18 months and made claims for race discrimination, unfair dismissal, breach of contract, unpaid wages and holiday. The latter claims were immediately dismissed by the Employment Tribunal, being based on an illegal contract. However she did succeed in her race discrimination claim, on the basis that it was not based on her contract but on the statutory tort of discrimination (applying Hall v Woolston Hall Leisure). The employer appealed successfully against this finding to the Employment Appeal Tribunal, and Ms Hounga appealed to the Court of Appeal.

After dealing with issues relating to the now defunct compulsory disciplinary grievance procedures, (which are now of no material interest) the Court of Appeal reviewed the case law on the effect of illegality and distinguished between the situation in Hall, where the employee knew about, and went along with, an employer’s illegal conduct but could do nothing about it (in that case, failing to make the proper PAYE deductions) and Vakante, where the employee was the instigator of the illegality by misrepresenting his immigration status when applying for a job. The courts are able to take a flexible approach to discrimination claims where an employment contract is tainted with illegality, depending on the degree of the employee’s participation and culpability. In this case:

The employment contract was… illegal in its inception since it was a contract for Ms Hounga to work in the United Kingdom when both parties knew that she was not entitled to work here.

The discrimination was thus so closely connected with the illegality that the claim had to fail. Her employers would not have treated her as badly as they did had it not been for Ms Hounga's vulnerability as an illegal worker. An unusual case is which the victim’s vulnerability (as a result of her own actions) effectively disqualified her from protection from discrimination.