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.
After considering the relevant authorities Lady Hale, deputy president of the Supreme Court took the view that the court should soften the effect of the reliance test – illegality defence as as a bar to the claim – and to consider the underlying policy objectives. With reference to public policy the award of compensation would not allow Ms Hounga to profit from her wrongful conduct since it was an award of compensation for injury to feelings, it did not permit evasion of a criminal penalty since she was not prosecuted, it did not compromise the integrity of the legal system since the idea that it would encourage others to enter into illegal contracts is fanciful and applying the defence of illegality might engender a belief that employers in such circumstances could discriminate against their employees with impunity.
On balance, and having had regard to the possibility that Ms Hounga might also have been a victim of trafficking, the public policy associated with a defence of illegality had to “give way to the public policy to which its application is an affront”. Accordingly the appeal succeeded.