The Supreme Court (SC) has held that a domestic worker could claim race discrimination in the UK, even if they were working in the UK illegally.
Miss Hounga (claimant), a Nigerian national, who now resides in England, came to the UK in January 2007, when she was aged about 14. Mrs Allen (respondent) made arrangements for the claimant to gain entry into the UK using a false identity. She was granted a visitors visa for six months and although work was prohibited under this visa, she was employed by the respondent as an ‘au pair’. She continued her employment with the respondent beyond the expiry of her visa which was in July 2007.
In July 2008, the respondent evicted the claimant from their home and dismissed her from employment. The claimant claimed that the respondent had discriminated against her on racial grounds, namely on ground of nationality and that she treated the claimant less favourably than she would have treated others.
She suffered violence and was threatened and harassed by the respondent. She was promised an education and £50 wages per month but the respondent reneged on those promises. She suffered serious physical abuse and was informed by the respondent that if she left the house, she would be found by the police and sent to prison as she was in the UK illegally.
The claimant presented an ET1 in the employment tribunal (ET) claiming unfair dismissal, breach of contract, unpaid wages, holiday pay and race discrimination contrary to sections 3A (harassment) and section 4(2)(c) (dismissal) of the Race Relations Act 1996 (now the Equality Act 2010).
The ET upheld the appellant’s assertion that there had been a contract of employment between her and the respondent but dismissed all her complaints other than for race discrimination relating to her dismissal on public policy grounds on the basis that the contract of employment was tainted by illegality as it was illegal for the claimant to enter into the contract without valid leave to remain in the UK or permission to work.
The ET awarded the claimant compensation for injury to feelings of £6,198. The respondent appealed.
EAT upheld the ET’s decision. The Respondent appealed.
The Court of Appeal (Rimer LJ giving the leading judgment) allowed the appeal and held that the illegality of the contract of employment formed a material part of the claimant’s discrimination claim and to uphold it would be to condone the illegality as it would be against public policy to pursue an unfair dismissal claim (Tomlinson v Dick Evans U Drive Ltd  IRLR 77). The claimant appealed.
The SC unanimously upheld the claimant’s appeal. It was agreed by Lord Hughes, with whom Lord Carnwath also agreed, that the claimant’s ‘appeal should be allowed in relation to her claim for the statutory tort of discrimination, committed in the course of dismissal.’ The claim in relation to the alleged pre-dismissal harassment on grounds of race or ethnic origin should be remitted to the ET to determine.
Their Lordships agreed that in relation to the present case, that while the defence of illegality precluded her from enforcing her illegal contract of employment, or claiming unfair dismissal, different considerations applied in respect of claims for the statutory tort of unlawful discrimination and there was not a close connection between the illegality and the tort, to bar her claim. This is distinguishable from her claim to recover for breach of contract of employment, when such claim depends on a lawfully enforceable contract of employment.
Furthermore, it was likely that the claimant was a child at a time that she came into the UK and it was likely that her transportation to the UK was with a view to her exploitation. Although the ET made no such finding, the claimant’s subsequent exploitation was evidence of a prior intent of the respondent. Nevertheless, assuming the claimant was a victim of trafficking then she would not be relieved of criminal liability for an offence she committed. However if she was compelled to commit the offence as a consequence of being trafficked, whether or not she was prosecuted was a pubic policy concern.
The majority of the SC allowed the appeal as a matter of public policy, in that it was ‘hard to resist’ the conclusion that the claimant was a victim of trafficking for forced labour. To allow the claimant to recover for the statutory tort of race discrimination would not amount to the court condoning what it otherwise condemns. Public policy against trafficking outweighed any public policy concern to preserve the integrity of the legal system.
The decision observes public policy principles behind the Modern Slavery Bill 2014-2015, which is currently in the House of Commons, to protect victims of human trafficking and sanction those involved in trafficking and exploitation.
By Jasmine Shergill,
Solicitor – Immigration, HR & Employment Department for TURBERVILLES (www.hrandemploymentlaw.com)
This blog does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken