Hounga v Allen and another  EWCA Civ 609 CA
illegality | race discrimination
The Court of Appeal has held that an employee who worked in the UK knowing that she did not have permission to do so was unable to claim discrimination against her unlawful employers, given that her illegal actions formed a material part of her discrimination claims.
Implications for employers
Employers should ensure that they carry out the necessary checks that employees have the right to work in the relevant jurisdiction.
Where an employee’s claim of discrimination is inextricably connected with his or her own illegal conduct, for example because he or she is relying on the illegal conduct as the basis of the claim, the employer should ask the tribunal or court for the claim to be barred on public-policy grounds.
Tribunals and courts will not condone an employee’s illegal actions, even if this means dismissing his or her claims.
Ms Hounga, a Nigerian national, was employed by Mr and Mrs Allen in the UK as an au pair from 28 January 2007 until her dismissal on 17 July 2008. She did not have permission to work in the UK, and lied to the authorities in Nigeria to obtain a six-month visitor’s visa. When she arrived in the UK, she lied to immigration officials about the reason for her visit. Her time with the Allens was unhappy, and the employment tribunal later found that she had suffered serious physical abuse from Mrs Allen, who threatened her that “if she was noticed by the authorities then she would likely be imprisoned”.
After her dismissal, Ms Hounga brought a variety of claims against the Allens, including race discrimination regarding her treatment during employment (non-dismissal discrimination) and dismissal (dismissal discrimination). The employment tribunal held that Ms Hounga’s contract of employment with the Allens was tainted with illegality given that, as she knew, she was not allowed to work in the UK. On public-policy grounds, the tribunal dismissed all of her claims except those for race discrimination. The tribunal upheld the claim of dismissal discrimination, but rejected her claim of non-dismissal discrimination regarding treatment during her employment, given that she had not raised a grievance about it beforehand, which was necessary under the law then in force.
The Employment Appeal Tribunal upheld the tribunal decision regarding both race discrimination claims, and the case went to the Court of Appeal.
The Court of Appeal upheld Ms Hounga’s appeal that her claim of non-dismissal discrimination should be allowed, on the basis that it was not practicable for her to have started or complied with the statutory grievance procedure within a reasonable period. However, the Allens argued that Ms Hounga’s discrimination claims should be barred on public-policy grounds in the same way as her other claims. They argued that the claim of dismissal discrimination was inextricably bound up with the illegal nature of her employment and that, if the Court dismissed that claim on this basis, then her claim of non-dismissal discrimination must also fail for the same reason.
The Court set out the tribunal’s finding regarding the claim of dismissal discrimination. The tribunal had found that the Allens had employed Ms Hounga because she was an illegal resident in the UK. She was vulnerable and could be treated favourably “with impunity” because of her “inferior situation”, having no rights to be lawfully employed. She had been dismissed because of her status, which was that she had no right to work in the UK, and the Allens would not have dismissed a British person working for them in this manner.
The Court considered the two leading authorities on the question of whether or not a claimant should be barred from bringing a discrimination claim where his or her contract is tainted with illegality. These are Hall v Woolston Hall Leisure Ltd  IRLR 578 CA and Vakante v Addey & Stanhope School  All ER (D) 561 (Jul) CA. The Court stated that the position of the claimants in each case was crucial. In Hall, the claimant was “only on the very fringe of the illegality tainting her employment”, being aware of the employer’s illegal performance of it, but not herself participating in it. Her discrimination claim was not so inextricably tied up with her acquiescence in the illegal conduct that allowing her to pursue the claim would amount to condoning unlawful conduct by her, and so she was allowed to proceed.
In contrast, in Vakante the whole employment relationship had been achieved by the claimant’s dishonest and criminal conduct, and he was not allowed to pursue his discrimination claim. The Court of Appeal in the present case said that Ms Hounga’s position was analogous to Mr Vakante’s: the only difference was that in Vakante, the employer was innocent of any illegality, whereas the Allens were equal participants with Ms Hounga in the illegal conduct.
The Court held that Ms Hounga’s discrimination claims relied on the fact that she was working in the UK illegally. She was making a direct link between the alleged discriminatory treatment and the circumstances in which she came to be employed by the Allens. The Court held that her discrimination claim was inextricably linked with her illegal conduct and that, if she were allowed to pursue her discrimination claims, and rely on her illegal actions, the Court would be condoning her illegality. This was “something that the Court will not do”.
The Court dismissed the race discrimination claims on public-policy grounds, holding that there was “no material difference” between Ms Hounga’s case and Vakante.
Case transcript of Hounga v Allen and another (on the BAILII website)