Illegal workers and discrimination

Many recent cases have involved undocumented migrant workers who suffer abuse at the hands of their employer. As explained in Chapter 3, as a general rule, an employer cannot escape responsibility for acts of discrimination merely by pointing to the fact that the contract is illegal — for example, because there is no work permit in place (see page 89). However, if a tribunal concludes that acts of harassment or discrimination are “inextricably linked” to illegality, a worker is unlikely to be allowed to bring a claim.

A court is more likely to rule that discrimination is inextricably bound to discrimination where a worker has colluded with the employer to enter the UK illegally, even in circumstances of extreme economic vulnerability (see Hounga v Adenike Allen [2012] EWCA Civ 609), or has lied to the employer, pretending to have the right to work (Vakante v Governing Body of Addey and Stanhope School [2005] ICR 23), than if a worker has made an innocent mistake, or pressed their employer to regularise their status (Wijesundera v Heathrow 3PL Logistics Limited [2013] UKEAT/0222/13/DA). For more information, see Chapter 3: Illegality.