Illegal workers and discrimination 




An employer cannot avoid a discrimination claim by simply claiming that the contract is illegal. For example, in Leighton v Michael [1996] IRLR 67, an employee could bring a sex discrimination claim even though she turned a blind eye to her employer’s failure to deduct tax and National Insurance.




However, a worker can be barred from bringing a discrimination claim where that claim is “inextricably linked” to the worker’s own unlawful conduct. 




The Supreme Court has confirmed that discrimination is not inextricably linked to illegality just because someone is working illegally, for example, without a work permit. Instead, all surrounding facts must be considered, especially the power imbalance created by the illegal status, which exposed the worker to exploitation in the first place. 


When deciding whether to allow someone who is working illegally to access the courts, courts and tribunals must take into account the public policy against human trafficking and in favour of protecting victims from slavery. In cases of worker exploitation, in general this policy is likely to trump the public policy of barring access to the courts to those who break the law, following a landmark Supreme Court ruling, Hounga v Allen [2014] UKSC 47.






There may also be a right to compensation under the Modern Slavery Act 2015, but only if there is a criminal conviction for the offence of slavery, servitude or forced labour.



A court is likely to rule that discrimination is inextricably linked to illegality if the worker has actively misled their employer, for example deliberately lying about their immigration status (Vakante v Governing Body of Addey and Stanhope School [2005] ICR 23).